HL Deb 22 July 1968 vol 295 cc693-841

4.12 p.m.

House again in Committee.

Schedule 11 agreed to.

Clause 103 [Classification of the Board's waterways]:

THE LORD CHANCELLOR (LORD GARDINER) moved Amendment No. 248: Page 138, line 21, leave out ("108") and insert ("(Access agreements and orders as respects canals other than commercial waterways and cruising waterways)").

The noble and, learned Lord said: I would ask the Committee to consider Amendment No. 262 with this Amendment No. 248, since Amendment No. 248 is entirely consequential upon No. 262. This matter arises because subsections (2) and (3) of Section 16 of the Countryside Act 1968, which enable access agreements and Orders to be made in respect of canals, do not apply to canals owned or managed by the British Waterways Board. The Board's canals were excluded from the Countryside Act provisions because it was considered that the Transport Bill catered adequately for their recreational and amenity use. The Board are to be given new powers and duties, and Exchequer grant is to be paid to enable them to open up their canals for amenity and recreation. But these powers anon duties do not apply to those of the Board's canals in the remainder category; neither is there financial provision for the Board to exploit them for recreation and amenity. So that they have been missed out on both counts. The Countryside Act does not bite on them, nor is there provision in the Transport Bill for them to be opened up for amenity and recreation.

It was not possible to put this; right by amendment to the Countryside Bill during its passage through Parliament, as until Part VII of the Transport Bill is enacted there is no means of identifying the Board's remainder canals. For this reason it is proposed that the Transport Bill should be amended as proposed in Amendment No. 262 so that the remainder canals would be subject to the access agreement and order provisions of Section 16 of the Countryside Act. I hope I am right in thinking that that Amendment will be welcomed in all parts of the Committee and Amendment No. 248 is entirely consequential upon Amendment No. 262. I beg to move.


I thank the noble and learned Lord the Lord Chancellor for his explanation of the purpose of Amendment No. 262, and assure him that it is entirely acceptable to us and seems to be very sensible.

On Question, Amendment agreed to.

The EARL OF KINNOULL moved Amendment No. 249:

Page 138, line 38, at end insert— ("Provided that no such definition shall reduce the length or extent of any waterway which the Board are bound to maintain as a commercial or cruising waterway unless the Minister has first made an order having that effect under subsection (3) of this section.")

The noble Earl said: I believe that we are now moving into calmer waters on this Bill, and I hope that we shall have some satisfaction on the Amendments under Part VII. Amendment No. 249 is a small Amendment which deals with subsection (2) of Clause 103, under which a Minister may by order further define the waterways listed under Schedule 12 by publishing a definitive map. The purpose of the Amendment is to place beyond doubt the wording of that subsection so that it cannot be interpreted in future that the publication of this map can supersede the description of the waterways in Schedule 12 and so possibly reduce or even change the network of the waterways listed in that Schedule.

This question was raised in an3ther place, where similar doubts were expressed. The Government spokesman on that occasion gave an assurance that subsection (2) was a contingency power to be used only in the event of disputes, such as terminal points of canals. He also went on to say that it was a very narrow and limited subsection and set out only the exact descriptions in Schedule 12 should they be necessary. Although one welcomes this assurance, my advisers still feel that the Government's good intention may not be interpreted in the future with the present rather loose wording of this subsection. The Amendment is needed to strengthen beyond doubt the Government's intention that the future maps in no way alter or reduce the network of canals in Schedule 12. I would ask the Government to accept this small Amendment, which really is only a clarifying matter. I beg to move.


This Amendment has something to do with a rather amusing procedure which has been going on for some years in the waterways. I do not suppose that many of your Lordships have made a collection of the admirable little booklets which are issued by the British Waterways Board on the various navigations which it controls, each of which at the end contains a map. I have collected these booklets over the years, and have noted one interesting fact. I always look first at the maps at the end. It is rather like the sort of procedure that takes place in Russia: one does not read what is in the text, but what is between the lines. In this case one reads what is at the end in the map. We have noted throughout the years that whenever the British Waterways Board was contemplating getting rid of a waterway, before it told anybody that it was going to do so, the waterway mysteriously vanished from the maps at the end of the latest cruising booklet. There would be the map with all the canals it intended to keep, but the one which it was intending to get rid of had ceased to be a fact and had vanished off the map. This was very often the first warning one had that such a waterway was to be closed. One also noticed that, if the Waterways Board changed its mind and the waterway was then considered worth retaining, in the next issue of the maps it reappeared. So it was quite obvious that its omission and its reappearance were deliberate. Of course, these maps had no legal force whatever and were purely to illustrate the waterways which the Board considered fit for cruising.

But the maps under this Bill will be quite different. They will be an actual part of the legislation and will have some force. Therefore, I consider it very necessary to make quite clear that the omission of any side arms, or anything else, on these maps is not a method of quietly closing parts of a waterway, but is merely a matter of convenience.


I cannot help feeling that behind this Amendment there is some suspicion of the Minister's intention in subsection (2) of the Clause. I can assure the noble Earl that there is no need for anybody to have any such suspicion. This is merely a question of definition. Subsection (2) as drafted says: The description contained in the said Schedule 12 of any waterway shall be read subject to any order made by the Minister for further defining that waterway by reference to a map. As we all know, when one is buying land it can no doubt be described in the conveyance, but experience has shown that it is almost essential to have a map properly drawn to scale, so as to show the exact limits.

There is no sinister intention in this. The purpose is simply and solely to enable the Minister, in any case where there is, or could be, some uncertainty, to define more precisely, by reference to a map, what the description of a waterway in Schedule 12 actually means in a particular locality. It is not intended to enable the Minister to alter the lengths described in the Schedule. One could, I suppose, have attached to an already long Bill a vast series of maps with one for every canal, but from a practical point of view that is unnecessary and probably impossible.

I cannot accept the noble Earl's Amendment, because it might well, if interpreted literally, render useless the power to define by reference to a map. How can you resolve an uncertainty as to the precise extent of a scheduled waterway, if you are inhibited from defining it in a way which might appear to alter its length or extent even by a few feet or inches? Indeed, if the uncertainty arises from a difference of opinion about, for instance, the exact end-point of such-and-such a length of canal, then settling the uncertainty by a precise map definition is quite likely to appear to somebody to be making that length a little too short or too long.

I do not follow what "reduce" means. I cannot understand how the Amendment could possibly apply in this respect. It says: Provided that no such definition shall reduce the length or extent of any waterway". But "reduce" from what? "Reduce" means that something is to be smaller than it was before. Presumably, it means "reduce from its original length", but what is the original length? The whole purpose of the map procedure is to define the original length more precisely, and you cannot, without confusion, speak of reducing something at the same time as your are defining it. In the light of that explanation and assurance, I hope the noble Earl will not press this Amendment.


I am very grateful to the noble and learned Lord for his reply—


Before the noble Earl possibly withdraws his Amendment, may I say something? I have had the honour of being a Member of your Lordships' House for, I think, some 22 years, and a reply similar to that which we have just had from the noble and learned Lord has been made several times in every one of those 22 years. First of all, the Government say that there is no reason at all to be suspicious of a promise which has been made, possibly by a Minister here or by a Minister in the other place. But in this set of circumstances there is a great deal of reason for being suspicious, and that is very much borne out by what my noble friend Lord St. Davids has just been saying.

It is not that one is suspicious about the Minister who has given the undertaking or promise. What one is suspicious about is what may happen under another Minister when civil servants, or, as in this case, the people who are running the Waterways Board, are, in effect, left to persuade another Minister that a policy which for a number of years they have been determined to pursue should now be put into force. That is exactly the situation against which we here ought to be protecting the public. But every now and then we persuade a Minister that some words which are rather more positive should, in fact, be put into a Bill, and that is the noble Earl's wish and intention on this occasion.

I had hoped that we might have had from the noble and learned Lord, if not a promise, at any rate an undertaking to look at this again, possibly in the light of a rather better worked-out formula for dealing with the problem. That is always the second part of the answer which I have been hearing over the last 22 years. First of all, it is said that there is no reason to be suspicious about a promise riot being kept, and then it is said that in any case the drafting of a particular part of an Amendment is such that it does not carry into law what the mover is aiming at. That is very often the case, because we have to struggle without the skilled assistance which the Government have in formulating Amendments.

But when the Government are reasonably anxious to help on these occasions, as they sometimes are—I pay them that compliment—then they indicate that they will be prepared to help. I am always looking for that, and I regret very much that we have not had any offer of assistance to help with the drafting of the Amendment on this occasion. If the noble Earl withdraws his Amendment, as he has been asked to do, I hope he will reserve his right to put it down again and possibly have the drafting looked at, so that, at any rate, part of the objection cannot be made against it at the next stage.


I am grateful for the support of the noble Lord, Lord Chorley, for my Amendment. I am naturally disappointed with the reply of the noble and learned Lord, and I think he was perhaps confusing the question. One is not being at all suspicious of the Government or accusing them of anything, however much other people may be suspicious of them. What one is suspicious of is the future interpretation of this subsection. I think the words "further defining" are particularly confusing.

Of course, I do not wish to press this Amendment. But I accept the advice of the noble Lord, Lord Chorley, that in withdrawing it I reserve the right to look at this again later, and possibly to put an Amendment down at the next stage of the Bill. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.28 p.m.

LORD NUGENT OF GUILDFORD moved Amendment No. 249Z: Page 139, line 4, leave out from ("section") to end of line 6 and insert and a draft of such order shall be laid before and approved by a resolution of each House of Parliament") The noble Lord said: I should first repair an omission which I should have dealt with earlier, and welcome the noble and learned Lord the Lord Chancellor to our deliberations. We have almost assumed a proprietary interest in this Bill which has been going on for so long, and we welcome him to this rather agreeable Part of the Bill, Part VII. In the main, it is going to fulfil the hopes of many people, although I imagine there may be some legal complexities in it and that is why we have pleasure in the company of the noble and learned Lord.

This Amendment provides no problem. Subsection (4) of Clause 103 provides the Minister with the power to make Orders by negative procedure; that is to say, the Orders come before Parliament but can only be prayed against. My Amendment would change the procedure to the affirmative one, so that each House must approve an order by affirmative resolution. Further to what the noble Lord, Lord Chorley, was saying on the last Amendment, Governments traditionally resist providing the affirmative procedure —indeed, I myself have often done so in the past—and Oppositions always ask for it. But I certainly would not trouble noble Lords now with an Amendment of this kind if there was not a specific and I think a good reason for asking for an Affirmative Resolution here.

The point is this. The Minister's power under Clause 103 is a very important one. It is concerned with the classification of our waterways. That is the basic philosophy of Part VII of this Bill. The waterways are now to be classified into three classes, as set out under subsection (1): commercial, cruising and "the remainder". There is immense significance in this, as I am sure the noble and learned Lord would agree. Schedule 12 sets out how the Minister's proposals will operate for the initial classification. When this Schedule has been approved by Parliament, either amended or not as the case may be, the range of use for each canal will have been settled on an up-to-date basis; and this, I think, is entirely sensible. But any future change of classification can be made only by the Minister making an order, having followed the procedure laid down in the Schedule. The statutory classification procedure laid down in the Bill takes the place of a mass of ancient Acts of Parliament, mostly Private Acts, which gave authority for the original building and operation of these canals.

The point is that until now a change in navigation rights or use of any of these canals could be made only by a new Private Bill, which of course ensured that the change proposed would be brought before Parliament, that people who were interested would have their opportunity to object and that the whole matter could be and would be threshed out in public if it was wished to do so. The Bill is streamlining the whole of this legislative procedure, and I think rightly doing so; and instead of a Private Bill there is now the Ministerial order. I am sure that I am not exaggerating the situation when I say that there is very great enthusiasm, great interest, in our canals—an interest which amounts to a burning interest in many cases—so that any change of classification would be a matter of considerable interest. Indeed, the Inland Waterways Association regard the ending of navigation rights as exactly the same as the closing of a public highway. I would accept that in principle, though it has not quite the same practical implications.

I entirely agree with the general philosophy here, and I am sure it is a wise one. But I would make the point —and I hope that the noble and learned Lord the Lord Chancellor will be sympathetic to it—that as an order in this context is taking the place of such an important legislative procedure in the past, it probably ought to be one subject to an Affirmative Resolution rather than a Negative one. I hope that the noble and learned Lord may be sympathetic to the Amendment. I beg to move.


In general, and on the face of it, I should rather dike to oppose this Amendment, but there is a good reason for accepting it. I should describe to your Lordships' Committee why I feel so split-minded about it. In general, I believe it is a bad thing if all Ministerial orders have to be brought to both Houses for an Affirmative Resolution. I believe the Affirmative Resolution procedure should in general be kept for major matters of policy on which Parliament and the people of this country ought to remind themselves from time to time, and that matters like this, which are to be found in very many Acts now on the Statute Book, should go by way of Negative Resolution procedure. But there is a point here, and it is this. As the noble Lord, Lord Nugent, has said, under existing legislation a waterway can be closed only by a Private Bill, which means that there is an inquiry upstairs at which anybody affected (provided they have the necessary money, which amounts to about £500) can put in an objection. Under the new arrangements there may be a public inquiry, but it is up to the Minister to grant it; there is not the necessity of a public inquiry.

If certain Amendments which will be moved later were accepted and a public inquiry were granted when anybody reasonably interested in the matter asked for one, I think the sensible thing to do would be to say: "Very well—the public are going to hear all about this business anyway; there is going to be a public inquiry. If things are all right, nobody will raise any trouble about it and the matter can go by way of Negative Resolution procedure; it can go through simply by lying on the Table. If, on the other hand, there is a stink ' at the public inquiry"—and public inquiries often do so turn out—"then the local Member of Parliament and several other people will start raising it in Parliament, and the Negative Resolution procedure can then he used to bring the order to a standstill". So the real point is that if we are going to have public inquiries whenever required, I think this Amendment is not necessary: but if the Minister can get away without a public inquiry simply because he does not want to hold one, then I think we ought to support this Amendment.


I should like briefly to support my noble friend Lord Nugent and also to support, by and large, what the noble Viscount, Lord St. Davids, said about public inquiries. The prime question on this Amendment, as I see it, is: how many alterations to classifications under Schedule 12 do the Government expect to occur? I believe the answer will be, "very few", in which case the question of an Affirmative Resolution would not be an embarrassment to Parliament. It may well be a necessity as a safeguard to the public interest. The importance of this Affirmative Resolution, as I see it, is in a case where a cruising waterway is being transferred to "the remainder". For those reasons, I would support my noble friend.


I have a good deal of sympathy with the view which has been expressed by my noble friend Lord St. Davids. The general question here is. I think, not at all an easy one, though it is an interesting one. Of course, I have no experience of any other Government except this, but as I understand it no one has ever sat down to think out clearly what ought to be the criteria for having an Affirmative Order, as against a Negative Order. It is a thing which one finds, in practice, Ministers are always having to consider. Surely there ought to be some fairly clear grounds for distinguishing between the two. We are, of course, getting more and more subordinate legislation and more and more Affirmative Orders, and these are now taking up quite a considerable amount of the time of both Houses.

I have no experience of another place, of course, but here we deal with them rather funnily, I always think, because they are first carefully considered by a Committee. If the Committee then report of an Order that it raises no question of policy; that it is amply precedented; and that the House can pass it without special attention, then the Order is moved in a speech explaining it all, and some courteous Member of the Opposition thanks the noble Lord who moved it for the clarity of his exposition, and perhaps raises a question. But nobody ever refers to what our own Committee, who have taken such a lot of trouble, says about it. Why, where there is that sort of report, we take up as much time as we do, I do not know; but it is taking up more and more time of both Houses of Parliament.

I should have thought that the distinction to be drawn between an Affirmative Order and a Negative Order should really be this. If (and, of course, there are many such cases) the order is one which the Minister simply has power to make, one on which he does not by Statute have to consult with anybody or to give notice in advance that he is going to make the order, one where there is no provision for objections, then that makes a case for an Affirmative Order. Otherwise, it may mean that the order is never discussed by anybody.

But this is an entirely different kind of case, because here Schedule 13 applies. And Schedule 13, in relation to an order made under Clause 103(3), says that in the case of such orders the Minister shall consult with any organisation appearing to him to represent persons operating, or (in relation to a waterway which is to be added) desiring to operate, commercial freight-carrying vessels on the waterway in respect of which the order is to be made …. In the case of a proposed order under section 103(3) … adding to or reducing the waterways in Part II … or … removing from Part I without adding to Part II thereof a waterway which is to a substantial extent used by cruising craft, the Minister shall consult with the Inland Waterways Amenity Advisory Council, consultation in a case within paragraph (b) above being limited to the effect of the proposed order on such use as is mentioned in that paragraph.…. In the case of a proposed order under section 103(3) … in respect of any waterway the Minister shall … publish in the London Gazette (or, if the waterway is situated in Scotland, the Edinburgh Gazette), in a national newspaper and in one or more local newspapers circulating in the area in which the waterway is situated; and … cause to he displayed in one or more places adjacent to the waterway, a notice containing a statement … of the general effect of the proposed order; and … that objections to the order can be made to him within such time (not being less than twenty-eight days) and in such manner as is specified in the notice; and shall consider any such objection which is duly made and not withdrawn; and, if he has caused an inquiry to be held in connection with the proposed order, the report of the person holding it. By all means let us make it subject to Parliament; but if, on top of all that is said in Schedule 13, it is to be subject to Parliamentary control, I should have thought that it was almost a classic example of an obvious case for a Negative Order. Added on top of all that, really an Affirmative Order would be gilding the lily. My noble friend Lord St. Davids says that there may not be an inquiry; that this is left to the Minister's discretion. There are later Amendments which would seek in substance to provide that if it was a reasonable objection, which had some backing, the Minister should always have an inquiry. I have a great deal of sympathy with that. One does not want, on the one hand, to have complete ministerial discretion about holding an inquiry. On the other hand, one does not want an inquiry simply because some proposal is made which has no real backing from people interested in waterways.

It may be that when we come to that Amendment we may together be able to arrive at some wording which would express the position in that way. But on this Amendment I submit that it would be painting the lily to have an Affirmative Order requirement added to all these consultations with everybody concerned, all the notices, the publications, the provisions for objections and an inquiry. Parliamentary control on top of that, yes; but I should have thought that it was an obvious case for a Negative Order rather than an Affirmative Order. I hope that on reconsideration the noble Lord may also take that view.


I find myself in general agreement with the noble Viscount, Lord St. Davids. I, too, have sometimes thought about what is the exact philosophy that decides between the Negative and the Affirmative Resolution procedure. I have come to the tentative conclusion that it makes rather more difference in another place than here. The importance difference, I think, in another place is that in the case of an Affirmative Resolution the Government have to find the time. That can make rather an important difference. The question is really one of the importance of the matters that are liable to be dealt with. In this case, I think, as the noble and learned Lord said, that this may be a good deal bound up with a subsequent Amendment—I think it is No. 275E—which we cannot discuss in detail in advance. It is not for me to suggest anything to my noble friend who leads us so well; but I should have thought that we might agree with the noble and learned Lord now, reserving our right to consider the matter further if we do not get satisfaction in dealing with that later Amendment.


May I thank my noble friend Lord Conesford for his support and good advice. I was very interested to hear the noble and learned Lord's analysis of the criteria for deciding whether the Affirmative or Negative Resolution procedure should be used. Certainly it fitted very well the noble Lord's argument and certainly it should have some part in the criteria. I have myself always thought that the main criterion was the general importance of the topic to be dealt with: that should be the first point. Certainly so far as the other place is concerned, there is much greater significance on which procedure is to be used. But this is not the point here. I do not think that a matter of great principle is at stake; it is more a matter of taste. Part VIII is generally trying to do something which will be, I think, satisfactory to the world of inland waterways. My own feeling is that it would have given a little more confidence in what was being done if this had been made subject to the Affirmative Resolution procedure rather than to the Negative Resolution procedure. However, I noted the promising indications given by the noble and learned Lord about a later Amendment, No. 275D, and I shall be happy to pursue the matter in a different way when we come to that and hope for a more satisfactory outcome. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

4.48 p.m.

VISCOUNT ST. DAVIDS moved Amendment No. 249A:

Page 139, line 8, at end insert— ("( ) Any person who suffers loss by reason of an order under this section shall be entitled to be paid compensation by the Board to be determined in the manner privided by section 104(9) of this Act.")

The noble Viscount said: This Amendment is one which I feel able to move because it affects the public rights on waterways as against the private rights. As some noble Lords know, I am the owner of certain private rights on waterways and I feel slightly uncomfortable when moving in this House any Amendments which affect them. Strangely enough, in this Bill the owners of private rights on the waterways are already protected and are entitled to be paid compensation under the relative clauses. But the owners of the public rights are not. The difference is this. If you take out a boat and navigate one of our public waterways, our nationalised waterways, you are enjoying a public right; if you buy a boatyard and set up a business on the bank which involves the navigation of the waterway, you are enjoying a public right. If you extract water for some great industry, water sold to you by the waterways, you are enjoying a public right. Those are the public rights and those, under this Bill, receive no compensation if the waterway is closed: whereas I who own a part—a very small part—of the bank of a canal an entitled under the clauses of the very old Act which authorises it to do all sorts of things which I have already mentioned in your Lordships' House. I am authorised not only to keep as many pleasure craft as I want on my section of the canal without paying any form of tolls or licence, I am also entitled to carry cargoes of manure free of tolls. I do not see why I should. But all these rights under the Bill will be compensated. I cannot for the life of me see why my rights, which are highly unimportant ones, should be compensated for while your rights, which are really important ones, should not.

What is more, these public rights effect the life of the waterways. If you are a businessman and you consider that the navigation of these waterways is a growing industry, as indeed it is, you may feel that you would like to invest some money in it. But it would make some difference if you discovered that the boatyard, or the marina, or whatever it is you intend to set up, could suddenly find itself put out of business at any moment by a Ministerial announcement, and that you would not receive one penny piece compensation. It is worse than that. These waterways are not used just by cruising boats, although there are many people who try to give the impression that that is their main purpose, partly to make it look as if the extra money the the Government are paying out is simply to subsidise people with motor cruisers. That is not so. The major purpose of these cruising waterways is the carrying of water. They are very considerable waterways, supplying water to public services, industry and that kind of thing.

It has been shown over and over again that if you cut down on cruising boats, cargo boats and so on, the lack of navigation rapidly produces a state in the waterway which stops the extraction of water because the water does not get through; the waterway silts up, weeds up, and so on. If we are really to have this sort of thing, with the Minister able to close down waterways without any compensation to the users of the canals, I am afraid that in abolishing the navigation of waterways, the Minister will abolish the revenues of the waterways and in so doing leave the unfortunate taxpayer to pay out a very much larger sum than he pays now.

The present position of these cruising waterways is that they are to be supported, until revenue improves, by about two-thirds of their revenue, and about one-third is to be paid by the taxpayer. The Government say, "Yes, but we must protect the taxpayer. After all, he is putting down one-third of the money." The trouble is that if you discourage the use of these waterways by making it impossible for people to invest money in the industries along the shore, industries connected with water extraction or the use of boats, or any other use, by allowing the Government to close the waterways you will save them one-third of the cost, but you will leave the taxpayer permanently saddled with the other two-thirds. We want to assure people who are building up industries on these waterways that they will not be left in the lurch if they show enterprise. We want to encourage them to build up industry so that the waterways pay for themselves and thereby remove the whole of the burden off the shoulders of the taxpayers. I am afraid that the sort of thing which is proposed in the Bill may well lead to the death of the waterways by the discouragement of enterprise, and that finally a very large burden will be left on the shoulders of the taxpayers.

4.55 p.m.

THE LORD CHANCELLOR My noble and learned friend has raised several points—


No; I am not "learned".


My noble friend—I am sorry, it is force of habit. My noble friend (and I am sure he is, in fact, learned) raised a number of points. First, I must say—though I did not want to get involved in this argument now—that I am not conceding a right of public navigation, but I do not think that is really affected by this Amendment. There is indeed a question of finance affected, because one of the questions I was going to ask my noble friend was, "Where is the money to come from?" It is easy for Members of Parliament to pass Bills putting financial liabilities on people and saying that they are to compensate other people, but somebody has to find the money.

As this applies to quite a number of Amendments, perhaps I might remind the Committee that in 1962, when the Conservative Government found the awful mess that the waterways were in, they thought, very sensibly, "Well, we shall never get this right unless it is somebody's whole-time job to do it." So all the waterways were transferred to this Board created for the purpose. Then the then Government, again very sensibly, said "We shall all 'go bust' if all the waterway liabilities which at the moment rest on the British Transport Commission continue." So, in effect, they declared a moratorium from those liabilities, and told the Board to go away and think out what ought to happen.

As your Lordships know, after an interim report in December, 1963, the Board came up with The Facts about the Waterways in 1965. Their conclusions were: (1) At least for a large number of years to come there is no prospect of pleasure craft activities paying for themselves in a true commercial sense; (2) There is no true business future for the narrow boats' for which such nostalgic claims are still sometimes made: (3) The most serious and overriding fact emerging is that, even if the whole of the 'rest of the system' were to be ruthlessly treated (without any regard for social welfare) and every possible canal were to be eliminated altogether or reduced to minimum water channelling flow—whichever was the cheaper—the Exchequer would still be saddled with a bill (4) It follows that in hard reality the field open to discussion on amenity' grounds of pleasure boating and leisure use lies between:

  1. (a) a rock-bottom starting point, not of zero but of £600,000 a year; and
  2. (b) a figure for using most of the noncommercial system as it is for pleasure boating, which is some £300.000 to £350,000 a year higher.
The true room for manoæuvre (subsidy, use of volunteer money. et cetera) lies in that latter range. The £600,000 is not optional. And, as your Lordships know, the Board recommended that there were still about 340 miles which ought to break even as commercial waterways. The choice, therefore, was between spending the minimum of £600,000 a year on the others and trying to preserve some 1,100 miles for cruising waterways, angling and so forth.

Naturally, when they decided, even in a time of economic stringency, that the taxpayer was to be asked to find what I think at present prices is another £400,000 a year so that people could have their holidays on the waterways, the inland waterway enthusiasts said, "Hooray! What a jolly good Government it is, after all." But I think it was treating them generously, in the sense that there are only 7,000 powered craft so it represents £50 per power craft a year. Or, to put it in another way, there are about 40,000 people who like to spend their holidays on the waterways, and this means that if this £400,000 were not spent on the cruising waterways they would be unable to have these holidays. It means, really, that the Government are providing £10 per holiday every year in order to enable these 40,000 people to have their holidays on the waterways.

The Bill has been so drawn that the Government are going to find between £900,000 and £1 million for the waterways, and the Board have to try to keep this 1,100 miles of cruising waterways open with this £400,000. So if some additional liability which is not in the Bill is imposed on the Board, one is forced to ask the question: Where is the money to come from?—because it will not come from the Government, and the Board have only this sum of between £900,000 and £1 million.

There is not, I should have thought, any moral case for this compensation. As I take it, what my noble friend has in mind, in particular, is a man who has a business concerning the hiring of pleasure craft on the canal, and why loses money because an Order is then made which transfers it from the cruising waterways to the remainder waterways. It is then said that he ought to be compensated. But this is an ordinary trade risk. Circumstances change, and all traders are affected by the change. Presumably, this is something against which one can insure. From another standpoint one could take the case of a man who buys some land next to a railway station in the country, using most of it as a parking place; he has a petrol pump, and all the motorists who come to the station to take their commuter trains to London leave their car in the car park and fill up with petrol; and he has perhaps a light repair shop. Then one day some wicked Conservative Government or some wicked Labour Government comes along, the branch line is closed, the station is shut and never reopened. Of course, no more motor cars go there; they go instead to the nearest station on the main line. This is very hard. But nobody says that the Railways Board ought to compensate the man.

This is particularly liable to happen in the field of transport accessories. A man may have a nice garage and filling station just on the borders of a big town, and on their way through people entering the town, or leaving it for the open country, fill up there. Then one day a by-pass is provided, and all the through traffic, instead of going through the town, goes along the by-pass, and they get their petrol from the filling station on the bypass. Nobody compensates that man. This, as I say, is an ordinary trade; risk.

Of course, there is contract. No doubt such a person when thinking of setting up a business on the canal will say to the Board: "Will you guarantee to me if I come here that you will not make this a remainder waterway for the next four years?" There is no reason why the Board should not say: "If you pay an additional rent, we will give you that guarantee." But a much more likely cause of a waterway having to be demoted to a remainder waterway is because such people have not done well. They are the people who will help to make the thing go. One can imagine a man who, starting a business of this kind, puts money into it, keeps all his boats nicely painted and his property in good repair, spends money on advertising, and he says: "This is much the best canal, and I have a much larger hire business than anywhere near." This does very well. People like it. The Board do well. Everybody is doing fine. Then one day perhaps he goes off on his annual holiday in a coach, and a horse or a cow runs out from a field into the road, the coach is overturned and he is killed. I see the noble Lord looks rather horrified at that. It was really an unconscious thing. I mention it because our law in that respect is pre-motor car, in fact. If a farmer leaves a gap in the hedge and a cow goes and eats his neighbour's cabbages he has to pay for them. If the cow gets through the same gap on to the road and people are killed there is no claim against anybody at all.

However, there it is. To revert to my original example, the business has to be sold, and it may be sold to a man who does not mind making money, but hates spending it. He does not paint the boats properly, does not keep the property in repair, does not advertise, the whole business goes off and very little revenue comes in on this canal. The Board will then reluctantly say "We are sorry, but we shall have to make this into a remainder waterway". I could accept an Amendment if my noble friend would put one down that in such circumstances the man ought to compensate the Board. I should agree with that, because the reason why the Board have lost all the revenue they used to have is because of this man conducting his business so badly. But why the Board should have to compensate him, I cannot understand. In my submission, there is really no moral case for this. It does not apply in any other walk of life in relation to by-passes, railways or any other changing conditions. It is a commercial risk. For those reasons, I cannot advise the Committee to accept the Amendment.


The noble Viscount, Lord St. Davids, is so competent on these matters of canals that he does not need any help from others, but I should like to correct one slip the noble and learned Lord made. I share his view that we do not want on this Amendment to embark on some rather complicated questions of law which will arise later. The noble and learned Lord referred to what is now in Section 61 of the Transport Act 1962, and he may be aware that the terms of that particular section resulted from an Amendment that I carried in this House, when I had to move it against the Government that I generally supported. Perhaps that will be taken as proof by the noble and learned Lord that I raise questions in the interests of users of canals, quite irrespective of the Government that happens to be in power. The point on which I think the noble and learned Lord made a slip was when he was referring to the moratorium which existed under the 1962 Act. I think I am right in saying that it never applied to commercial canals.


I should like to support the noble Viscount, Lord St. Davids, on this Amendment, because I feel that the noble and learned Lord the Lord Chancellor has been a little unfair on canals. In the first place, he talks about the question of compensation when a railway closes a branch line. He gave the example of perhaps a coal merchant losing his business because the branch line is closed. I think I am right in saying that if that coal merchant had a private siding he would get compensation from the Railways Board. I think this is very similar to a barge operator on canals.

The noble and learned Lord made quite a lot of this subsidy that the Government have undertaken. He seems to forget that the Minister of Transport when she introduced her White Paper described the canals as a "priceless asset". Yet, in my view, they are only giving a rather limited subsidy of £350,000 a year, which in fact is a reducing subsidy, because every year the operators of the craft increase their numbers, I believe, by 10 per cent. The Board do not have the power to levy any charges for drainage like river authorities do. When one considers other expenses —for instance, I believe the cost of keeping Hyde Park comes approximately to £350,000 a year—I do not think the noble and learned Lord can say that this is a great cost to the Government.


The noble and learned Lord said that there was no precedent for compensation of the kind that has been described, but is it not true that if the Government decided to close a branch of a canal, fill it in and use it for building purposes, the owners of sites on that canal would get compensation for planning purposes?


The last thing that I am is an expert in planning law, but I should have thought not. Of course, the Bill does provide compensation for the withdrawal of private rights in the 600 different Canal Acts that there are.


I wish I could get out of the minds of the Committee an idea which seems to have got into my noble and learned friend's head. I am sorry I am not as learned as he is. We had a number of discussions together on the clauses of this Bill, and I must say that he left me in some confusion as to the law. I may have left him in some confusion as to the facts. But he knows the law in this matter, and I believe that I know the facts. What he is suggesting in many ways is quite wrong. He quoted, for example, the case of a garage beside a railway station. That garage has nothing to do with the railway. It is there simply because the railway is there. It is a subsidiary industry which has set itself up because of the operation of the railway, but the railway has no responsibility whatever for the garage, unless the garage owner, as has already been suggested, was also a coal merchant who had a siding, in which case he would be entitled to compensation.

But this is the point. The people of whom we are talking are not in the position of a garage owner who has just a subsidiary industry which he has set up. They are very much more in the position of the coal merchant who has a siding, in that their business is intimately connected with the railway and if the railway closes their whole business is out. They are almost more like a garage owner, not whose railway was taken away but whose road was taken away. If we must take this as a parallel with the railway, my noble friend might consider that. t is the coal merchant with the siding he should be considering, and not the garage owner perhaps with a garage a little further down the road, not actually on railway premises.

My noble and learned friend seems to have another misconception. It is that all this extra money is being found by the Government and is being, found to subsidise motor cruiser holidays at so much a head—I cannot remember his exact figure. But, if I may put this point quietly and politely, without indignation, that is nonsense. The fact of the matter is that this money is not subsidising motor cruisers. The British Waterways Board are running these canals and the money is not being given by the Government as an extra subsidy on top of what the Board are already spending. The Government are simply paying towards the deficit on these particular waterways, a deficit which, as a matter of fact, is decreasing very fast and will not long continue.

When the Board said they could cut down to £600,000 a year—I agree with my noble friend's figure; after all, I was given the same figure myself is a other words; the Board are finding two-thirds from their own money and or e-third will be coming as a subsidy on their deficit—they did not say that they could cut down to £600,000 a year instantly. The Board in their Report (and my noble friend has read it out) said that if they spent 10 years reducing their deficit by closing the waterways, at the end of 10 years they would have got the figure down to £600,000. Given 10 years of a revenue which is increasing at a very fast rate (I am not quite sure of the exact percentage), is it going to be cheaper to build these waterways up, or to cut them down? I believe, and the increasing figures show all the time, that the cheaper course is actually to keep the waterways open.

It is not a matter of supporting the motor cruisers, because these boas are actually dredging the canal for other purposes. I have heard it argued with some reasonableness, although I would not myself go the whole way with this argument, that as regards the cargo boat it would pay the British Waterways Board to subsidise the canal narrow boats, which I quite agree are not really viable cargo carriers, as has beer said. But it would pay the Board to subsidise them, for the simple reason that the loaded boats are pushing the mud aside, cutting the weeds down and rendering the waterway passable. This not only assists pleasure craft but enables the water to flow to industry. Also, these boats are providing deep, clear water for the fishermen. We are very often told that fishermen do not like boats, but they do like them for the purpose of keeping a waterway clear.

We should remember that when the Ashby Canal recently had no coal boats going along it for a period—they had been its normal trade—the weeds closed over it completely and the fishermen ceased to be able to fish. The fishermen on the Ashby Canal then bought a canal narrow boat, which they steamed up and down the canal so many times a week for the sole purpose of keeping the channel mud pushed out. This left a deep channel and kept the weeds cut down. The navigation of boats is necessary for the fishermen, and it is also necessary for the passage of water, so that the water can reach the water users along the canal, who are the big revenue providers. The £300,000 is doing all this, quite apart from the cruising boats. If a canal is no longer navigable—in other words, if the lock gates are abolished and all the rest of it—if you are going to have any fishing and any water supply for industry you must clear the canal by other means than by dredger. You have to clear it by something which no longer floats, and that means dredging from the bank and all sorts of methods which are far more expensive than doing it by boat, because they are not the natural method of clearing a waterway. So the argument which my noble friend brought in (I would never have brought it up) that this is extra money, and that it is being handed over to subsidise at so much a head the pleasure boating community, is an argument which I do not think the Committee should wear for one moment. I bow in all respects to my noble and learned friend on the law, but perhaps he should give me a small nod in the matter of knowing the facts.

5.17 p.m.


I did not want to interrupt this debate, but I should like to ask the noble and learned Lord what is going to be done to help the agricultural industry in the country if some of the waterways, all the waterways, or just a few of them are closed. These waterways, besides providing navigation for small boats, are very impor- tant to the farmers. Can he give me any assurance that the farmers are going to be protected?


The Government do not want to close the waterways at all. On the contrary, they are providing considerable sums of the taxpayers' money in order not to. All I was pointing out was that the Report (and I read out the whole of the Summary of the Report) said that, whatever was done—and this will take a period of years to arrive at—the canals and waterways were going to cost £600,000 a year. The Government could of course have stopped there and said, "We are very sorry. The economic position is particularly difficult. Taxpayers have to provide the £600,000, but we do not think on the whole that we are justified in calling on the taxpayer to provide the extra £400,000". But they did not. I am very glad they did not; I share the enthusiasm for the waterways. Therefore, I hope that this question will not arise for too long, as the whole of the Government's programme is to continue it—not only the 340 miles of commercial waterways but the 1,100 miles of cruising waterways.

But the fact remains that, if we are going to place on the Board any obligations larger than those in the Bill, which has been tailored to meet the £400,000, the question arises: where is the money to come from? It is not coming from the Government. I bow entirely to my noble friend about this, because he knows so much more about the waterways than I do, but I have been able to think of only two ways in which the extra money can be raised if the Board have to find substantial additional sums for compensation. First, they could increase the licence fees. I should have thought there was a point at which by increasing licence fees you may drive away customers so that you do not get extra revenue. Secondly, of course, they could transfer one or two of the cruising waterways and save money by making them remainder waterways.

The money has got to come from somewhere. I have not heard yet where it is going to come from. Even if the Committee think there is a moral claim in such cases to pay compensation, it will be very largely to the people, whom my noble friend has in mind, who will have been responsible for the low conditions of this particular canal. It seems to me very odd that the Board should compensate them, rather than they compensate the Board.


I am not sure whather I need leave to speak or not, but since the noble and learned Lord has spoken again, perhaps I may be permitted to do so. The point is this: the extra money was a deficit, it was a deficit of the Waterways Board, exactly as the Railways Board has a deficit. The money simply appeared as a deficit in the accounts. It was not anything in fact provided by the Government at all. Nevertheless, it is very important because, sooner or later, the taxpayer has got to find a deficit, or somebody has got to, even if it is a matter of a Treasury write-off. Therefore, it is important but, nevertheless, it is also important, as my noble and learned friend has said, to cut down this deficit as quickly as possible.

The question was whether the quickest way to cut down this deficit—it was not a matter of a Government subsidy—was to close the waterways and try to reduce them to water channels, as the Board said in their Report (and I think my noble and learned friend has probably found it by now: I noticed he was looking for it), or, to build them up as cruising waterways. The question was which would abolish this extra £300,000 faster? Would it be closing down, spending 10 years getting their deficit down to £600,000, at which figure we shall be stuck with for good, or to build up over these 10 years in the hopes of abolishing the £300,000 that way. In the latter case, there is a chance to build up, and that would not only get rid of the £300,000, but would then go on to abolish the £600,000. This is the point. I believe the right policy is the forward policy of pushing on. The Report which my noble friend read out was 1965. We have had three years since then, and we have seen this policy build up more and more, even in these years. I agree that the forward policy is the cheaper one for the taxpayer, quite apart from anything else, and I support this forward policy.

On a matter of compensation, I do not know what your Lordships wish to do; whether you wish this Amendment to be put through the Lobby, and whether you wish us to divide on it? I have a feeling that the Committee, probably would not wish to divide at this stage, but to consider the further clauses of the Bill, and reconsider this matter, having gone through other clauses of the Bill, at a later stage. I believe that this might be the wiser method, and so, having laid down what I believe to be the proper thing for us to do, I think I should now withdraw this Amendment, and let your Lordships hear more of the argument on the other clauses of the Bill, and then, when your Lordships know more exactly what we are talking about in these waterways, possibly put down an Amendment at a later stage. On the basis of that policy, I wish to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 103, as amended, agreed to.

Clause 104 [Maintenance of the Board's waterways]:

5.26 p.m.

LORD MOLSON moved Amendment No. 251:

Page 139, line 17, at end insert: ("( ) to maintain in a reasonable condition for supporting a right of way any lank of a cruising waterway carrying a pub is path shown on a definite map published under Part IV of the National Parks and Access to the Countryside Act 1949.")

The noble Lord said: I beg to move the Amendment standing in the name of my noble friend Lord Chorley and myself on the Order Paper. This Amendment seeks to give effect to recommendation 21 of the Gosling Committee or Footpaths. The Government on the whole have given a favourable reception to that Report, and I hope, therefore, that they may be disposed to accept this Amendment, which gives effect to one more of its recommendations.

This Amendment seeks to add a second duty to the Waterways Board in respect of cruising waterways. At present, under paragraph (b) it is a duty of the Waterways Board to maintain the cruising waterways in a suitable condition for use by cruising craft. This Amendment seeks to add a responsibility to maintain the condition of a towpath alongside of a cruising waterway, where there is a right of way, in order to maintain the effectiveness of that right of way. The highway authority at present can take no action in the face of a towpath, since its duty is to maintain the surface of a path and not its supporting bank. The result is that under this Bill the Waterways Board will have no power to take action, and the highway authority also has no power to take action. Therefore, the effect of the use on these cruising waterways by pleasure craft may well be to undermine the banks, with the result that the right of way along the towpath will come to an end.

Not all towpaths are public rights of way. Your Lordships may feel it desirable that the Waterways Board should be under an obligation to maintain all of them. I do not think that we should go so far as that. It would open up a number of difficulties. The conclusive evidence of the public status of these rights of way is in Section 32 of the National Parks and Access to the Countryside Act 1949, which provides that they should be included on definitive maps. This Amendment does not go much beyond the law as it is at the present time, before the coming into operation of this Bill. Under the law at the present time, the Board are bound by Section 17 of the Regulation of Railways Act 1873, as amended by Section 61(1) of the Transport Act 1962, to keep towpaths in good order as part of the canal, or navigation works.

This duty will clearly disappear as soon as this present clause comes into effect, because it limits responsibilities of the Waterways Board. I suggest, therefore, that we should ensure that the Waterways Board will be obliged, in addition to preventing the towpaths from falling in, so as to impede navigation, to prevent them from falling down to an extent which is going to interfere with the use of a right of way. I hope the noble and learned Lord will not repeat in the case of this Amendment the argument that the Government have carefully calculated exactly what the income and the expenditure of the Board is going to be, and that it would therefore be wrong for your Lordships to impose any additional duty upon the Board.

Surely the thing we have to bear in mind is whether this public Board ought to discharge certain responsibilities. I suggest that the maintenance of towpaths so that the rights of way are maintained for the benefit of the general public is a duty which we ought to impure upon them. All that the Government can do is to make an estimate of what the income will be under this Bill, and also what the expenditure will be. Governments—and I am not speaking of this Government more than any other—are notoriously unable to foresee the future, and there may well be the money available. If the money is not available it may well be that the Board will incur some deficit, as has been known in the case of the railways in the past. Therefore I hope it will not be argued that to impose on the Waterways Board this small and, I think, reasonable obligation, which hardly goes beyond the law as it stands at the present time, and which was recommended by the Gosling Committee, should be rejected by your Lordships for these purely financial grounds. I beg to move.


I should like to add a word in support of what my noble friend Lord Molson has just said. He has explained the legal side of it most lucidly but I should like to add a word as to the great importance, from the point of view of the young man and the young woman who like to take their holidays in the country, of maintaining the footpaths along the canal banks. This Amendment is very much in line with the Amendment which the noble and learned Lord moved to bring the Countryside Act into line with this Bill. The National Parks Commission (now the Countryside Commission) have been devoting a great deal of attention over the last years—with a great deal of success—to what are called long-distance footpaths. There are remarkable examples of these, and in particular I might quote the Pennine Way. It has not been stated quite so prominently that along many of the canals there are long-distance footpaths—of a different type, of course, but nevertheless of great importance to the young people who go walking in the country at weekends for pleasure, exercise and recreation. This is an example of an excellent type of footpath which is present all over the country wherever there are canals, and which certainly ought to be maintained.

Obviously, the Waterways Board have to keep up these canals. The obligation to do that is put upon them. The obligation has not so far been put upon them to maintain the banks in such a state that they will continue to carry the footpaths. Obviously, to keep up the waterways will require some maintenance of the banks, and the difference between maintaining them from that point of view and maintaining them in a state to carry a footpath obviously cannot involve a heavy financial burden. There is an overwhelming case for putting this burden on to the Waterways Board, and I hope the Government will agree.


While I agree that it is necessary to keep up public footpaths on canal banks, surely that is already covered in the clause. Under subsection (1)(a) and (1)(b) the authority has to keep up the banks for commercial usage by all types of craft, and therefore if one has to keep up the banks in order to stop them from crumbling into the canal I should have thought it covered the two things. If they are allowed to crumble in, the canal cannot be used by craft, and particularly by commercial craft which are usually much larger than pleasure craft. Therefore I should have thought the very fact of having to keep up the banks for the passage of commercial craft would mean that they are also kept up from the point of view of the public right of way on top of the banks.


I wonder whether I may, in a few words, quote what seems to me to be an analogy. The noble Lord, Lord Molson, will know what I am referring to. I am thinking in terms of the situation when reservoirs are built. For my sins, I was a member of a waterworks committee for many years, when a certain reservoir was built and the valley was flooded. At that time, there were representations from ramblers' associations and the like with regard to footpaths to replace those which had been flooded, and they asked that those footpaths should be maintained for the future by the local authority. This was done, and I am sure it was also done in the Lake District by the Manchester Corporation. My mind goes back to the Kinder Down fall area and the Kinder Reservoir. If it is right that footpaths should be made and maintained by public money it is surely reasonable that they should be maintained as far as canal banks are concerned. I know that it is not a case of the National Exchequer in regard to reservoirs but it is money provided by local authorities, and there seems to me to be a certain amount of reasonableness in the Amendment.


I should like to support what was said by the noble Lord, Lord Chorley, about the great advantage that towpaths confer on walkers. Although I suppose it was half a century ago, I still remember walking from Marlborough to Devizes, which is one of the loveliest walks in the country, and I remember particularly the last four miles or so, which were on the towpath of the Kennet and Avon Canal. Knowing the pleasure that such walks can give to those who have discovered that walking is almost the best thing to do if you want to discover the countryside, I hope the noble and learned Lord will find is possible to accept this Amendment.


I hope my noble and learned friend will excuse me if I say a word on this subject. On the last Amendment he made some play of there being only a limited number of people using hired cruisers on the canals. In this Amendment, the number of people we are dealing with is not in the 10,000, or 50,000, or 100,000 mark; there are over a million fishermen who use these canals and, in particular, the towpaths. We are also talking about the walking community, which is very large and has never been counted at all. My experience of going along canals—and I have gone along quite a few in my tune—is that if one counted heads along a waterway the walkers would be just about as numerous as the fishermen, and there would he something like 50 or 100 fishermen to every person seen in a boat. These are the people who want the towpaths. Obviously, the towpath would cost a small sum more than a mere navigation bank, but I should have thought it one of the finest investments that could possibly be made.

To get back to the analogy of Hyde Park: I do not know how many people could use Hyde Park if they tried to, but the number would not be very great before they started walking on each other. Many who would want to use it probably could not even get to Hyde Park either by public or private transport, but these waterways have the advantage that they are generalised all over the country. They are within reach of the bus stops of all the major towns, and particularly the old towns, where there is so little other public open space. It is for this reason that their towpaths are so valuable. You can get to a canal towpath from almost anywhere in any of Britain's major industrial towns, and they make most attractive walks. If there is a little extra money available to be spent on the countryside, one of the finest places on which it could be spent for a very large return for very little money is in keeping up these towpaths as public footpaths.


I am absolutely bursting with sympathy and I only wish I were bursting with some money. We all want to keep Government expenditure contained and to safeguard the position of the taxpayer. Of course, when you get a group of people with a particular interest naturally they think that taxpayers ought to spend money on that particular interest. If I may say so to my noble friend Lord St. Davids, there was £340,000 to be spent on the cruising waterways, which, I think, with the fall in the value of money is now £400,000. This was after taking into account all the revenue from pleasure cruisers themselves, which was about £100,000. With regard to fishing, I do not know how many anglers there are. I know they contribute only £20,000 to this £1 million which in effect has to be provided for the waterways.

I have in front of me Section 17 of the 1873 Act, and it does not say anything about the footpaths. I think the noble Lord, Lord Molson, will find there was no liability under that Act in relation to footpaths. The Board, as they made clear in the Annual Report for 1967, are anxious to encourage the use of their waterways for all kinds of recreation, including walking, and they recognise that their towing paths offer attractive possibilities for providing long distance walking routes entirely freed from motor traffic. The old situation, in which a "trespassers will be prosecuted" policy was traditional, is now completely changed and the Board's witnesses to the Gosling Committee on Footpaths made it clear that in the light of the Government's decision to retain the grater part of the waterways system for [...] and amenity use a much more positive policy would now be pursued. Except in towns where questions of public safety and other problems arise, the Board are very sympathetic to the use by the public of towing paths of waterways in the cruising network. Some local authorities are already considering whether they could assist, either with money or with physical help, in the maintenance and improvement of towing paths. The Board welcome this, for it will enable standards to be attained and kept for which funds would not otherwise be available.

But it does not follow that the Board ought to be burdened with the new liability which this Amendment seeks to impose on them. The Board will have to maintain the banks of their waterways to certain standards merely to fulfil the purpose of properly containing the water in its channel. It would be inequitable to demand of them that they should maintain the banks of their waterways in a reasonable condition for supporting a public path for the benefit of the general public who may use the path without payment to the Board. The local highway authority is responsible for the surface repair and maintenance of public paths out of public funds. The local highway authority also has a permissive power to reinstate a footpath that has been lost. If only because of their concern with the maintenance of the waterways for navigation, it is unlikely that the Board will allow towing paths along canals to be lost through bank erosion. We must also remember that on a number of waterways within the Board's undertaking, the Board is not responsible for the maintenance of either of the banks. A river authority may be liable, for example. I am afraid that the Amendment, if made, would undoubtedly give rise to confusion, and I must ask the Committee not to accept it.

I hope that what I have said will reassure the noble Lord that it would not be reasonable to impose this added burden on the Waterways Board whose resources are limited. A more practical way of achieving the admirable purpose the noble Lord has in mind would be for him to use his redoubtable powers of persuasion to encourage local authorities to use their powers under the Highways Act or their new powers under Clause 110 to maintain and improve and, if necessary, replace public paths along the banks of the waterways. Constructive moves in this direction have already been made by some local authorities in London and Leicestershire. Perhaps the noble Lord can help to spread the Gospel elsewhere.


May I get something clear. The noble and learned Lord read very fluently, but it was not altogether easy to take in what he was saying. Do I understand that under Clause 110, "Power of local authorities to assist in maintaining waterways for amenity purposes", highway authorities will be empowered not only to maintain the surface but also the support which is necessary in order to keep these rights of way in proper condition for use?


Yes, so I understand—and in any case the local highway authority has a permissive power to reinstate a footpath that has been lost.


Including along the side of a canal where it is lost owing to the subsidence of the support?


So I understand.


May I add a word to this important debate and say to my noble friend Lord Molson that, as other noble Lords, I entirely sympathise with his objective, but would also commend the course that the noble and learned Lord the Lord Chancellor is commending; that it is the local highway authority which is the right authority to carry out this work. I can give my noble friend an interesting example of where this was done in order to repair the towpath on the banks of the Thames. T1-, Thames Conservancy, like the Inland Waterways Board, has no funds for repair of the towpath itself—which of course is no longer used as such—and this towpath inevitably gets eroded in places in bends of the river and therefore becomes unusable for the many people who would like to walk on it. But it has bean possible to persuade the riparian county councils, which at the time were Surrey and Middlesex, to engage in a scheme, which the Thames Conservancy carried out for them, to repair the towpath throughout the length of Middlesex (as it then was) and Surrey, right up to the boundaries of Surrey, over a very important length of the river which would be very much used by walkers. The two county councils, with the local district councils coming in as well, financed the whole project. It was very expensive. The cost was something of the order of £150.000 to £200,000. This is the problem: it is not cheap. It is necessary, usually, to put in camp-shedding in the bank in order to strengthen the bank, because it is eroded at that spot.

If the alternative course is pursued of asking the Inland Waterways Board, or in this case the river authority, to make a new footpath, it probably has to buy the land from the riparian owners and once again it involves considerable expenditure. I should think, with the noble and learned Lord the Lord Chancellor, that the local highway authority is the right authority. I rather suspect that the new Countryside Act will also give further powers to the county authorities who are contemplating making a country path, which will, of course, in many cases include canals or rivers, and who will have funds available for making up footpaths which have fallen into disrepair. On this occasion I feel that the advice given by the noble and learned Lord the Lord Chancellor is the right advice, and I hope the Committee will follow it.


Very interesting possibilities seem to me to be developing. If the noble and learned Lord the Lord Chancellor is right, that the local authority can do this work under a later clause, it will obviously go a great way towards meeting the point which we are putting forward on behalf of the Commons and Footpaths Society and the hikers. Lord Nugent of Guildford's linking it up with the obligations and indeed rights of the local authorities under the Countryside Act is very important. Under that Act, of course, over a wide range of their activities for the purpose of providing these amenities in the countryside, the local authority is entitled to help from the Exchequer. Surely it would be very reasonable indeed that this should in fact be a responsibility which is shouldered partly from the centre and partly from the local districts. If the Government have at their command people able to look at these things, it might be that a reasonable solution of this problem—a most important problem from the point of view of walkers—can be found. I hope the noble Lord is prepared to indicate that this might be done.


I am grateful to the noble and learned Lord for the full and erudite way in which he has dealt with this matter and also for the general sympathy he has expressed for what we have in mind. I have now looked at Clause 110 and I see that it authorises a local authority to give assistance. I hope therefore that it will be effective. I also hope that when I have followed up the various points which the noble and learned Lord made it will be apparent that there is adequate machinery for dealing with this matter in general.

At the same time, I would point out that, in so far as I followed the argument, there is nothing mandatory in this matter and it would be possible for most useful and valuable towpaths to be lost simply because of the divided responsibility. I do not accept the noble and learned Lord's argument about exonerating a water board from all responsibility. Here we are setting up a statutory body to administer for cruising purposes—that is, for recreation and amenity—1,100 miles of canals in this country. It is thought that that is the most useful purpose to which they can be put. That a water board's responsibility should be limited to repairing damage done by pleasure boats in cases where so much of the bank has fallen in as to be obstructive to pleasure boats themselves and, therefore, they should not be under any obligation to take steps to repair or support the towpath, does not seem to me entirely satisfactory.

It should be borne in mind that these towpaths were built by the canal authorities at a time when the ordinary traffic on canals consisted of horse-drawn barges. When the nature of the traffic changes and becomes power-driven boats which are used as pleasure cruising craft, it does not seem to me at all unreasonable that the towpaths which were pro- vided by the waterway authorities should be maintained by the authority which is taking them over. However, I will look at this matter again and consider whether I shall put anything down on this point at the Report stage. In the meantime, I would thank the noble and learned Lord for his sympathetic reply, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.54 p.m.

LORD NUGENT OF GUILDFORD moved Amendment No. 257Z: Page 140, line 17, leave out subsection (6).

The noble Lord said: I beg to move this Amendment in the names of my noble friends and myself. Clause 104 is a very important clause which was introduced, as noble Lords will have discovered, at the Report stage in another place as a result of strong representations from many quarters, including the Inland Waterways Association. I do not doubt that noble Lords on all sides of the Committee have received briefs and documents from the Inland Waterways Association, saying what they think of the clause as it now is. It is a clause which the Government put on the Order Paper with good intentions, to meet the general complaints that had been made, but, like the curate's egg, it is good in parts. Without any doubt the worst part of it is subsection (6).

Subsection (6), and indeed the clause as a whole, had only a very limited debate in another place because it was not taken at the Committee stage and the guillotine time-table rendered the debate on Report very short. Subsection (6) is particularly objectionable because it enables the Minister to use his powers under Clause 103 to reclassify a waterway, even though an application to the High Court has already been made alleging a failure to maintain a waterway in a proper state by the Waterways Board. Subsections (1) and (2) of Clause 104 lay a statutory duty on the Waterways Board to maintain particular waterways in a proper state, according to the classification of the waterway. This is entirely acceptable and right, and everyone is pleased with that.

Then subsection (5) of this clause gives the right to apply to the High Court—or in Scotland to the Court of Session—when someone believes that the Board is failing in its responsibilities for maintaining a canal, and wishes to oblige the Board to carry out proper maintenance. This is also a right and proper provision, in my view, although the Inland Waterways Board has some rather critical things to say about the last part of it. However, I would accept these in good faith.

Then comes the offending subsection (6), which in effect gives the Minister power to change the rules in the middle of the game and thus render the right of action to remedy a grievance under subsection (5) completely nugatory. Let me give an example. A canal is classified under Clause 103 and Schedule 12 as a cruising waterway. It becomes choked with weeds and therefore unnavigable in certain stretches. A person who finds his cruiser unable to navigate the canal brings an action in the High Court charging the Waterways Board with negligence in their duties under subsection (5). The Board immediately rush to the Minister and convince him that this canal is little used nowadays and that it would be only sensible to reclassify it, downgrading it from a cruising waterway under section 103(1)(b), to that of "the remainder"—in other words, a non-cruising waterway. The Minister agrees and immediately gives an Order f or reclassification. The complainant's action in the High Court then falls to the ground: the canal has been changed to a classification where there is no obligation for maintenance laid upon the Waterways Board.

Really, a more ludicrous situation is hard to imagine. This is equivalent to the referee at a football match awarding a penalty in the penalty area, and just as the chap is about to kick a goal he blows his whistle and declares him offside. The referee would never get off the field alive; and nor, I suggest, should the Minister get away with this. If there is a case for reclassification—and perhaps this will happen from time to time—it must wait until after the High Court hearing is settled. This procedure is quite unacceptable. I feel sure that the noble and learned Lord the Lord Chancellor could not feel this to be a satisfactory piece of law to put on the Statute Book. I beg to move the Amendment, and hope he will accept it.

6.0 p.m.


I agree to some extent with the noble Lord, Lord Nugent, although I cannot go all the way with him, especially in his example. But there can be even worse examples. If a waterway is likely to be reclassified, people using it are likely to know about it, or at least should be informed about it; and as the information gets around the waterway users will take the trouble to remove their craft elsewhere, start closing down their businesses, and so on. They will have some time, or some chance at least, to remedy the worst results upon themselves.

The danger in this clause is that you might get something, not like weeding up, which is a slow process which occurs over weeks or months and everybody knows about it, but something like the sudden collapse of a lock gate and circumstances occurring whereby a boat is trapped in some impossible position from which it cannot be retrieved. The owners then ask the Board to put the matter right and the Board says, "There is going to be a stoppage for a week or two, or some weeks or some months while we mend this lock gate." So the owners of the boats sit down and wait. The stoppage goes on and on, and eventually the owners say, "What has happened about that stoppage?"; and the answer is, "We have decided not to repair the lock gate. We are going to close the canal. The Minister has decided that."

Your Lordships may think that this is an imaginary case, but that is just what happened on the Kennet and Avon. John Gould took his pair of working narrow boats up the Kennet and Avon and a stoppage occurred behind him. The stoppage then became prolonged, and when he inquired what had happened about the repair of the stoppage he was told that they did not intend to repair it. This meant that his boats were trapped. Under the law as it then was, and in fact as it now stands, he had a right to compensation, but if this occurred now Mr. Gould would have no case for compensation and no method of removing his craft. He would not be warned of what was going to occur; he would not have the slightest method of avoiding disaster to what in Mr. Gould's case were working boats which were his livelihood. He would not have the chance to remove them from the area of risk. The danger is that you may get a sudden stoppage and the Board may simply refuse to put it right. This has happened in the past, and I am afraid that it may happen in the future. We want there to be some warning before the Minister makes an order. The trouble about this arrangement is that you may get everybody held up and caught by a sudden order, without any warning at all.


Various objections have been made to this subsection. Perhaps I may add one which will not be considered quite trivial. It is a direct breach, and I think the first statutory breach, of a well-known requirement of Magna Carta. Whatever my differences with such an eminent law reformer as the noble and learned Lord, I should not like him to be associated with such a bad piece of legislation. I will quote the phrase both in Latin and in English if desired, but I think it will probably be sufficient if I quote the well-known words in English: To none will we sell, to none will we deny or delay, right or justice. This subsection enables the Minister when an action is brought to delay justice by order. The subsection is so monstrous and so unnecessary that I hope the Committee will reject it with scorn.


I should like to support the Amendment. I feel sorry for the noble and learned Lord the Lord Chancellor in trying to reply to this Amendment. As I understand it, an aggrieved party can apply to the court and then, as the noble Lord, Lord Nugent, has said, halfway through the Board can come along and say that they are thinking about changing the order. The result appears to be, first of all, that the court's time is wasted; secondly, the aggrieved party's costs are totally wasted; thirdly, an implication that it is a mockery of the court; and fourthly, that the Board seem to be able to frustrate litigation. Consequently I believe that no aggrieved party would come forward in future as there would be little hope of satisfaction; there would be no hope of recovering any costs or damages and it would seem that Lord Cairn's Act would not apply.


This subsection does not seem to be one of the most popular in the Bill, but, in my opinion, it is essential that the Minister's power to consider, publish and, if necessary, make orders for reclassifying a waterway or altering maintenance standards should be preserved. These powers could be of great practical importance if some disaster befell a waterway—for example, if an aqueduct or a tunnel collapsed. Some of these canals are 150 years old, and the tunnels are of that sort of age. They are low tunnels because, as your Lordships may know, the method of propulsion was by men lying on their backs and propelling with their feet on the roof of the tunnel. In such a situation the Minister might legitimately conclude that it would be in the public interest to reclassify the affected length rather than expend large sums of public money in reinstating the waterway.

Without this subsection it would be possible for some types of waterway enthusiasts, whom the Board generally welcome, by instituting court proceedings under subsection (5) alleging serious failure to maintain a waterway, to frustrate any proposal by the Minister to make an order reclassifying a waterway. There is in fact a history of the use of legal proceedings begun or stimulated by such waterway enthusiasts in order to secure the preservation or restoration of waterways. If such proceedings were begun in relation to a length of waterway in the commercial or cruising categories, it would be virtually impossible in the absence of subsection (6) for the Minister to initiate and proceed with a reclassifying order. He would be accused of prejudicing the legal proceedings, and it would be claimed that he was acting in contempt of court. The retention of subsection (6) is essential in order to protect public funds and the Minister's powers.

I should emphasise that subsection (6) relates only to legal proceedings against the Board under subsection (5); that is to say, to proceedings requiring the Board to remedy serious defects. It has nothing whatever to do with Common Law claims against the Board for negligence or nuisance, or with claims under the Occupier's Liability Act, or with any other claims by persons using the waterway and sustaining injury or damage while navigating the waterways. Such claims are quite independent of subsection (5) and are therefore unaffected by subsection (6).

I do not understand the suggestion of something being closed in a moment. The reclassification procedure is, after all, subject to all the provisions of Schedule 13, to all the notices and consultations and objections and inquiries, and to Parliamentary control. Subsection (6) cannot finally put a stop to proceedings under subsection (5) without Parliament having an opportunity to pronounce on the matter. I feel sure that this subsection has to some extent been misunderstood, and I hope that with that explanation the noble Lord may be prepared not to press the Amendment.


I have no doubt that the clerks who advised King John at the time of Magna Carta gave him exactly that sort of advice, which was rejected by the Barons of England, and I hope the noble Lord will not withdraw this Amendment.


I feel I was given very sound advice by the noble Lord, Lord Chorley. The fact is that this provision goes much too far. The noble and learned Lord the Lord Chancellor, if I may say so, made out a good case where a special emergency occurs of the collapse of a tunnel which would not necessarily be very expensive to mend; or the collapse of a large-scale aqueduct which may cost hundreds of thousands of pounds to mend. That, perhaps, would be a case for reclassification. I would, myself. be prepared to consider that the Minister should have the right to intervene to save public funds there. But this provision covers everything. The noble Viscount, Lord St. Davids, mentioned the incident of the collapse of a lock gate which, of course, does happen sometimes, but it is no serious interference with a waterway, with navigation, to close the lock for a period. This often has to be done on all navigations, which may be closed for two or three months while the lock is being rebuilt, and, in the meantime, the navigation is temporarily stopped; and similarly, I should have thought, with a tunnel collapse. The general case, I believe, is not a good one, and the noble arid learned Lord the Lord Chancellor himself has taken away with one hand what he gives with the other. What he gives in subsection (5) he is really taking away in subsection (6). Lord Kinnoull's intervention was, I thought, particularly effective on this point. No one would ever start an action if the Minister could step in and reclassify the canal. It costs several hundred pounds to do; it simply would not be worth doing. The subsection, as it stands, goes much too far.

I should be willing to see this redrafted in a way to cover the extreme emergency such as the collapse of a complete aqueduct, which is a very special case, but for normal purposes I think tat the Board must accept the obligation to repair what has gone wrong and keep the navigation going. If there is to be a reclassification the Board must come along afterwards through the proper procedure laid down in the Schedule, and everybody can then have his chance of putting forward his point of view and the Minister can consider it in a proper way. But the clause as it is now drafted gives no satisfaction to anybody. I believe that the Government have tried in this clause to meet the enthusiasm and the needs of the inland waterway world and I think, if I may say so, they have gone a long way to do it; but here in subsection (6) they have done something that is so unacceptable that they detract very largely from all the good they are doing here. I hope that the noble and learned Lord is going to say something more forthcoming; otherwise I feel that I should ask the Committee to divide on this Amendment.


May I think about this? Obviously the Committee do not like this subsection as it is, and if I may have an opportunity to think about it I shall be able to see how far we can meet the views expressed.


That is very handsome, and I am sure it would be the wish of the Committee to see if it can be re-drawn in a way which would protect the vital and exceptional case while leaving the right in subsection (5) in the main secure, as it should be. In the light of that undertaking I shall be happy to withdraw the Amendment.

Amendment, by leave, withdrawn.

6.15 p.m.

THE EARL OF KINNOULL moved Amendment No. 260Y:

Leave out Clause 104 and insert the following new clause:

Maintenance of the Board's waterways.

(".—(1) Subject to the provisions of this section, all persons whatsoever shall have the right with boats, barges and other vessels of any kind suitable for use thereon to use and navigate the commercial waterways and the cruising waterways at all times and for all reasonable purposes without any unnecessary hindrance, interruption or delay, paying to the Board the licence fees, tolls and other charges and observing the terms and conditions applicable thereto.

(2) Subject to the provisions of this section, it shall be the duty of the Waterways Board—

  1. (a) to maintain the commercial waterways in a suitable condition for use by commercial freight-carrying vessels; and
  2. (b) to maintain the cruising waterways in a suitable condition for use by cruising craft, that is to say, vessels constructed or adapted for the carriage of passengers and driven by mechanical power.

(3) Subsection (2) of this section—

  1. (a) shall not impose upon the Board any higher duty or liability to maintain a waterway or part of a waterway for the purposes of navigation than the duty of the Board contained in section 17 of the Regulation of Railways Act 1873 and subsection (1) of section 61 of the Transport Act 1962 which the subsection replaces;
  2. (b) shall not impose upon the Board any duty to provide special facilities for commercial or cruising vessels which the Board would not have been liable to provide prior to the date of this Act;
  3. (c) shall not, save as provided in subsection (4) of this section, impose upon the Board any duty to enlarge the dimensions of the locks, other navigational works and bridges on any waterway as they exist at the date of this Act;
  4. (d) shall not, save as provided in subsection (4) of this section, impose upon the Board any duty to maintain the navigable depth of water on any waterway at any greater depth than is reasonably necessary for the passage of cruising craft on a cruising waterway and commercial freight carrying vessels on a commercial waterway of a size, design or type in each case customarily using that waterway;
  5. (e) shall not impose upon the Board any higher duty or liability in respect of the use by a commercial vessel of a cruising waterway than the duty or liability which the Board would be under in the case of cruising craft using the same waterway.

(4) If it appears to the Minister that, having regard to any change in the size, design or type of vessel customarily using, or which would be likely to use, any commercial waterway or cruising waterway, or any part thereof, or which would be likely to use any such waterway or part but for limitations caused by the existing state of maintenance thereof, it is desirable to exercise his powers under this subsection, he may by order substitute for the duty imposed on the Board by the foregoing provisions of this section in respect of that waterway or part such duty in respect of the maintenance thereof as he considers appropriate having regard to that change, and may by that order make such incidental or transitional provision as he thinks necessary or expedient in connection therewith.

(5) Where any part of a commercial or cruising waterway is subject at the date of this Act to the provisions of section 64 of the Transport Act 1962 (which temporarily suspends the duty of the Board to maintain certain waterways) the provisions of that section shall continue to apply to any such part for a period of one year from the date of this Act and thereafter the Minister may by order continue the suspension of the duty of the Board upon the same terms as are contained in the said section for such period or successive periods as having regard to the financial resources of the Board and such other considerations in the case of each waterway as appear to him to be relevant he may think fit.

(6) Schedule 13 to this Act shall have effect in relation to the making of any order under subsections (4) and (5) of this section, and any such order shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7) The Board shall cease to be under any duty imposed by any statutory enactment to maintain for the purposes of navigation any waterway comprised in the undertaking of the Board which is not designated by or under this Act as a commercial or cruising waterway and any local enactment passed with respect to any such inland waterway, so far as that enactment imposes upon the Board any duty to maintain that waterway for the purposes of navigation (including any duty to supply or maintain a supply of, water for the waterway for that purpose), shall cease to have effect.

(8) In the case of any such waterway as is mentioned in subsection (7) of this section the following provisions of this subsection shall have effect:—

  1. (a) any local enactment passed with respect to any such inland waterway so far as that enactment creates any public or private right of navigation shall cease to have effect;
  2. (b) in the case of any artificial canal or watercourse the soil of which is owned by the Board all public rights of navigation shall be extinguished but any rights of frontagers to keep or use boats thereon which are in the nature of accommodation rights to cross the canal or watercourse shall continue unless and until otherwise ordered by the appropriate tribunal;
  3. (c) in the case of any natural river forming part of a navigation carried on or formerly carried on pursuant to powers conferred by any local enactment the soil of which is not owned by the Board and any navigational works or artificial canals forming part thereof
    1. (i) rights of public navigation shall continue or be deemed to have revived;
    2. (ii) any rights of frontagers to use boats other than a right to make use of navigational works shall be preserved;
    3. 737
    4. (iii) the Board a River Authority or a body exercising powers under section 107 of this Act shall be under no liability to any person to maintain any navigational works and may carry out any necessary works in the interests of safety, drainage, amenity or the prevention of flooding whether or not navigation is obstructed by such works;
  4. (d) the Minister may by order made in accordance with the provisions of Schedule 13 to this Act provide for the regulation, use and management of any such river navigation and may by the order make such incidental or transitional provision as he thinks necessary or expedient in connection therewith.

(9) Section 17 of the Regulation of Railways Act 1873 and subsection (1) of section 61 of the Transport Act 1962 (which require the Board to maintain the waterways comprised in their undertaking for public navigational use) shall cease to apply to the Board and any provision of any local enactment which imposes any duty upon the Board to maintain any commercial or cruising waterway for navigation shall cease to have effect and for the duty of the Board thereunder and the rights of the public there shall be substituted the provisions of subsection (1) of this section.

(10) Nothing in this section

  1. (a) shall affect the right under any local enactment of the owner of the soil of any part of a commercial or cruising waterway to keep or use any vessel on the part of the waterway owned by him;
  2. (b) shall operate by the naming or description of any waterway in Schedule 12 to this Act or in any order made under subsections (3) and (4) of this section to vest in the Board any part of that waterway not comprised in the undertaking of the Board prior to the passing of this Act so as to make the Board liable for the maintenance of any such part for which the Board was not previously liable or otherwise affect the ownership of or liability for such part;
  3. (c) shall operate by such naming or description as is mentioned in paragraph (b) of this subsection or otherwise to entitle the Board to make demand and recover charges for the use by any ship or boat of any tidal water customary free river, lake or loch in Scotland or any waterway vested in or controlled by any other navigation authority for the use of which the Board were not entitled to charge prior to the passing of this Act.

(11) Any person who suffers loss by reason of the extinguishment by virtue of this section of any right shall be entitled to be paid by the Board compensation to be determined, in case of dispute, by the appropriate tribunal; and the tribunal shall, in determining the compensation, take into account any contractual right offered by the Boa.-d in substitution for the right which is extinguished.

The noble Earl said: I beg to move the Amendment standing in my name and the name of the noble Viscount, Lord St. Davids. This is somewhat of a formid- able Amendment and one feels rather like David taking on Goliath. I should, in the first instance, explain the reason for the gaps on the Order Paper of Amendments Nos. 252 to 259. The original series of Amendments, in fact, was to amend Clause 104. It was then considered that it would be easier for the Committee if one put down a completely new clause. The principal purpose of this Amendment is to restore—I would say "almost" again to my noble friend Lord Conesford—in the Bill a public right of navigation.

The drafting of this new clause is in no way different from the Government's policy in the White Paper they issued, Cmnd. 3401. It accepts the necessity to reduce the Board's maintenance obligations; that is, from the 1,800 miles of waterways to the 1,400 miles of waterways. It then accepts the necessity that the Board's maintenance obligations must fit in with modern times. Thirdly, it accepts that the bulwark of the Board's maintenance obligations—that is, Section 17 of the Regulation of Railways Act 1873—should be repealed. It has now become out of date. What the clause does not accept is the loss of the public right of navigation.

The Government, one understands, when drafting Part VII of this Bill asked the question how they were to reduce the Board's obligations of maintenance. I think I am right in saying they took the view that they would have to take away all the public rights of navigation in order not to cause any hybridity to the Bill. I believe, in fact, that this can be achieved without causing hybridity, although I do not think that this clause, or this Amendment, achieves it. In fact, I have a fresh Amendment to this Amendment which it was too late to put down but which I think does achieve it. I am, therefore, not suggesting that we should press this Amendment to-day but discuss and, I hope, persuade the Government of, the principle that it is not necessary to remove public rights of navigation in order to reduce the maintenance obligations of the Board.

Before going any further may I give a short history of the old rights of navigation and the duty of maintenance that has been laid down in the past? The British Waterways Board are, of course, responsible for two types of nationalised waterways: that of the natural water- ways, the Severn, the Trent, the Lea, and so on, on which the public have a Common Law right of navigation and have had for centuries—they have had, anyway, up to now. Then there are the artificial waterways which, the Committee will know, were constructed around 1760 to 1840, principally for commercial purposes. These all came within Local Acts which gave the public a statutory right of navigation. We then found that the railways considered the canals were in competition, and they purchased many of these canals. Parliament, in its wisdom, saw that there was a real danger that the public right of navigation would cease, so it brought in Section 17 of the 1873 Act, which stated: Every railway company owning or having the management of any canal or part of a canal shall at all times keep and maintain such canal or part, and all the reservoirs, works, and conveniences thereto belonging, thoroughly repaired and dredged and in good working condition, and shall preserve the supplies of water to the same, so that the whole of such canal or part may be at all times kept open and navigable for the use of all persons desirous to use and navigate the same without any unnecessary hindrance, interruption, or delay.

The decision in 1931 in Blundy Clark v. L.N.E.R. gave the precise extent of that duty to repair. The duty is not absolute, but is a duty to take reasonable care both as regards non-feasance and misfeasance. The plaintiff has to prove negligence, and in that case the canal authority was not liable for the collapse of an apparently sound structure, the weakness not being discoverable on ordinary inspection. The authority was liable to the extent only that there was unreasonable delay in effecting repairs.

We then come to the 1947 Act which, as the Committee will know, nationalised railways and canals belonging to the railways, and also certain natural waterways. The British Transport Commission was then set up and took over the maintenance responsibility under Section 17 of the 1873 Act.

There was then the 1962 Transport Act, which set up a new body, the British Waterways Board. At that time the Government saw that, despite the Section 17 obligation of maintenance, many waterways had fallen into disrepair and in many cases were far too expensive to restore. The Board were told to review the waterways under Section 10(2) of the 1962 Act. Under Section 64 of the Act the Board were given a temporary relief of obligation of maintenance, other than in respect of the state the canals were already in. This was virtually a holding operation given for five years. We then come to Section 61(1)(b) of the 1962 Act (or what was later known as "Lord Conesford's Clause") which brought in Section 17 of the 1873 Act so as to apply to the Waterways Board.

There is also one further section I should mention under the 1962 Act, namely, Section 43, which gave the Board powers to make charges for services as they saw fit. It has been said in a letter by the Minister to Members of Parliament that that section cut away some of the public rights of navigation. Perhaps I may quote a short extract from his letter: The claim that by doing away with these old navigation rights Parliament will be depriving the public of valuable rights cannot be substantiated. These were originally rights to navigate on payment of the tolls prescribed in the local Acts. These fixed tolls were finally abolished by the Transport Act 1962 which gave the Board the power to demand what charge it liked. Today, therefore, navigation on a waterway of the Board is navigation on the Board's terms. Navigation rights on the canals to-day, so far as the public are concerned, are theoretical rather than practical rights. I cannot accept that, because in fact the Board are still under an obligation under Section 17 of the 1873 Act, which gave the public the power to navigate without unnecessary hindrance, interruption or delay. I suggest that if the Board were to impose too heavy charges these could be called a hindrance to navigation.

The Government's White Paper (Cmnd. 3401) was published in 1967. This recognised the value of waterways as a "priceless asset" on the grounds of amenity, drainage, water carrying, transport and so on. The White Paper also set out the Waterways Board's future obligations as to the maintenance of commercial and cruising waterways and reducing it to 1,400 miles. The White Paper also said that the Board was to be given a new and positive duty of maintenance. At this stage in 1967 there was no suspicion that the public rights of navigation were to be abolished under this Bill.

We then come to the 1968 Bill. Here, the Government decided to repeal the Board's obligations under Section 17 of the 1873 Act. We have no quarrel with that. The Government also decided to remove all public and private rights of navigation on waterways. Thirdly, they decided to place on the Board a maintenance duty for waterways under Schedule 12. The result of this, and the reason why one is pressing for public rights of navigation to be restored, is that if the public lose their right of navigation they will be losing the four remedies of action which at present they possess against the Board.

The four actions, I am advised, are as follows. There is, firstly, the action for special damage caused to a person by the unreasonable and negligent failure of the Board to fulfil its duties. The noble Viscount, Lord St. Davids, has already quoted the case of John Gould in 1954, where an ex-serviceman with his gratuity set up a salt-carrying business which was virtually destroyed by the lack of maintenance of the Kennet and Avon canal. He sought an injection against the Board and was eventually awarded £5,000 damages. Then there was the Willow Wren case. So that there have been two recent cases where an action for special damages has been pursued.

Then one has the second remedy, the action for damage for personal injury; that is injury to persons or property caused by the negligence of the Board. The obvious example was the lock gate collapsing. The reason, I am told, that the public would riot have an action under the Bill as it is at present drafted, is that the court may take the view the public have no automatic right to navigate; they are navigating by permission of the Board. In another place the Government spokesman said that the Occupiers Liability Act 1957 would cover this. I am advised that this would not be so. Section 2(1) of that Act reads: An occupier of premises owes the same duty, the ' common duty of care', to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. In other words, he or the Board can contract out of that liability.

The third action is the action to enforce a right of way, which may be brought by a member of the public, or by the Attorney General on behalf of the public, if a person wishing to navigate is refused passage unreasonably. The reason, I am told, why the public would not have a case here is that the court may take the view that it could only grant an order to someone with a legal interest. There has been a recent case on this very point, Attorney General v. Reading Corporation. Lastly, there is the action for injunction that is, the action for injunction to enforce the duty of repair. This action may be brought by an individual suffering special damage, or by the Attorney General on behalf of the public. Here one has the Ashton Canal case, which is the subject of a later Amendment.

There is one other factor which I believe this clause destroys, and that is the Common Law rights. The Minister, in his letter to Members of Parliament, stated this: There is nothing in the Bill which interferes with Common Law or prescriptive rights of navigation on rivers or natural courses or with contractual rights relating to navigation where these exist. Only rights arising, from long outdated canal and railway legislation will cease. I am advised that under the present Clause 104, the combination of subsection (7)(a) and subsection (10) would accidentally abolish the Common Law rights on both the natural and artificial waterways of the Board.

Turning to the new clause, subsection (1) reaffirms the public right of navigation in the words of Section 17 of the 1873 Act. All remedies of action are to remain. This, of course, gives security of tenure to operators of canals. Subsection (2) reaffirms the Government's present subsection (1). Subsection (3) sets out the minimum obligation on the Board to maintain the Schedule 12 waterways. Subsection (4) gives the Minister power to make an order increasing, as well as lowering, the standard of maintenance—in other words, to make his power more flexible. Subsection (5) deals with the eight waterways in a later Amendment to Schedule 12 which, if it is accepted, will extend the interim provisions of Section 64 of the 1962 Act. Subsection (6) repeats the Government's present subsection (4)

Subsection (7) relieves the Board of all duties of maintenance in respect of the remainder of waterways. That, again, is similar to what the Government propose. Subsection (8) deals with existing rights of frontagers on the remaining waterways, and also retains the rights of navigation on natural waterways such as the River Tone. Subsection (9) abolishes Section 17 of the 1873 Act and the later Section 61 of the 1962 Act, recognising that to-day they are out of date. Subsection (10) preserves the right of frontagers on river navigations to moor their own boat on their own land on their own water. This appears to be abolished under the Government's clause. Subsection (11) deals with compensation in terms similar to the Government's subsection (9).

I repeat, again, that the purpose is to retain all public rights of navigation over the Board's waterways, which I suggest can be done without hybridising the Bill. I recognise that this Amendment fails to do this, but there is, in fact, a precedent for this, in Section 41 of the Land Drainage Act 1930, dealing with power to vary navigation rights. I ask the Government this question. Why should the public not be allowed an enforceable right to navigate over the Schedule 12 waterways, which are to be kept open at public expense? I beg to move.

6.34 p.m.


I have a great sympathy with my noble friends who produced Clause 104 in an effort to make simple something which is extremely complicated. Unfortunately, it simply will not do, because it is a lawyers' attempt to cut a Gordian Knot without reference to the facts. Perhaps I can put some of the complications to your Lordships so that you can understand.

The waterways are not basically what one thinks of as canals. They are not necessarily artificial channels. Many of these waterways are natural waterways, which would be there whether the Board wished them to be there or not. The Board do not necessarily own the waterways; in some cases not only do they not own the waterway; they do not even own the water. In some cases the Board have nothing more than a simple right to navigate without any other ownership at all of the waterway. In some cases they own the sites of the locks and the sites of one or two major works, such as weirs, but nothing else. In some cases the Board own the water but nothing else, the owners of the land owning the ground under the waterway to the central line or, in some cases, the whole of the ground. In other cases, the Board own the channel of the waterway but not the banks.

In some cases the Board own the banks but not the towpaths; and of course the banks are of various widths. In other cases, to make the matter more complicated, the Board have only a lease of this property, and sometimes the lease depends on the right of navigation and comes to an end should navigation stop. In other cases, even where the Board have the freehold of the land under the canal, that freehold reverts either to the present riparian owners or to the original owners of the land on which the waterway runs. The waterways may be in all sorts of states. In some cases there is considerable navigation on a waterway even though the British Waterways Board's works—the locks, et cetera are completely out of action. The complications can be quite enormous, and some of the results can be very odd indeed.

If navigation rights are removed as this Bill proposes, among other places where it will be illegal to navigate will be the River Severn, the River Trent and, most extraordinary of all, Loch Ness. Loch Ness is a navigation belonging to the British Waterways Board by the fact that it is contained within the beginning and end of the Caledonian Canal. The Caledonian Canal has locks at each end, at the sea ends, and Loch Ness is part of the waterways of the British Waterways Board. If this Bill is allowed to stand as it is, there will be no legal right to nagivate Loch Ness, or even to fish on it, because a great deal of the fishing is done from a boat. The only way of having a right to fish or to navigate Loch Ness is by getting the permission of the British Waterways Board. It will be necessary to get a licence from the Board. All boats will be illegal. I do not know about the poor old Monster: I suppose be becomes not only fabulous but illegal, too. If all the navigation rights which have existed throughout history on these various waterways are to be swept away for the Board's convenience, I suggest that this is simply monstrous; it is fantastic.

Let us take the example of a West Country river, the River Tone, which flows through Taunton. That is a navigation owned by the British Waterways Board by the fact that it owns the original sites of the locks. The locks have been out of action for many years and there is no through-passage for heavy craft, because heavy craft cannot get through the locks. Nevertheless, there is quite considerable navigation of the river by all sorts of small craft—rowing boats, canoes and so on—which can be portaged over the lock sites easily enough; and there are even quite heavy craft in the pounds between the old broken-down locks. All this usage becomes illegal—and this would not even be navigation. This would not even come within the cruising range of the Board.

What has been done is a praiseworthy effort to get rid of the 600 antiquated Acts which muddle and confuse everything that we try to do on these waterways. But the Government really have thrown out the baby with the bath water. Surely it would be much better not to do away with public navigation but to retain the obligations of Section 17 of the Regulation of Railways Act and to cut them down as suggested by the method used in the Land Drainage Act 1930, where Section 41 gave the Minister powers and rights (which he was to use in case the navigation authority did not use its power) to extinguish, vary, or decrease navigation rights. That was done without any prejudice to Section 17 of the public rights of navigation.

But the public rights of navigation are valuable. We have to remember that if we are dealing with the British Waterways Board we are not dealing only with the pleasure-cruising waterways. We are dealing with the commercial waterways as well. The commercial waterways are not losing money. In fact, they have made a very considerable profit this year. If we start tinkering with these very successful waterways by removing the rights of navigation on them, which is what we are doing in this Bill, we may start damaging the commercial side, in which case the financial losses with which we may be faced are certainly going to make a difference to the Board's revenues.

My name is on the new clause, Clause 104, but I recognise that because of the fact that, as it turns out, our new clause is a hybrid we cannot move it. Nevertheless, although our clause will not stand up, nor will the Government's clause. Why, oh why, must we have the rights which the public has had over all the major waterways in the country swept away for the convenience of the Board? I suppose the only possible argument is: because it would cost more money to keep them. But how? If it cost more money to keep the waterways up to a higher standard of navigation the Minister could quite easily have powers, as in the Land Drainage Act, to cut down the size of boat allowed to pass through a waterway, or in fact to cut it down to the point where a boat would not be allowed through the waterway at all. The Minister could easily have that power while basically retaining the ordinary public rights of navigation.

Are we going to be told that if the public rights of navigation are left the Board are going to be liable for enormous sums by way of compensation? I suppose it could, theoretically. The Board have fought these compensation actions from time to time. But what sums have been obtained from the Board? If we are told that it is going to cost the Board vast sums of money, I ask: what sums of money has it cost the Board in the past? There have been these actions, these well-known actions, but that is almost the entire list of actions that there has ever been. There have not been masses of actions by people hiring hire-cruisers and complaining that they have been hit on the head, or something. The hire-cruiser companies operate an enormous number of vessels. As my noble and learned friend says, there are some 10,000 hire-craft on the waterways. How many of these boats have been damaged by some negligence on the part of the British Waterways Board, and how many of their operators have sued the British Waterways Board? I can hardly think of a single case.

As for the private owners of boats, they navigate these waterways for hundreds and for thousands of miles with no trouble at all; and if we run on the occasional snag, we do not blame the British Waterways Board. I have navigated these waterways for thousands of miles, and I have never had any trouble. It may be said: "Ah, yes, but you are an expert, so of course you do not get into trouble. But what about all these people that we are told about by the noble and learned Lord, these 40,000 people in hire-cruisers?" These are not experts, these are the beginners, and yet they do not spend their time running their boats on to submerged snags and wrecking them. If the waterways were in such a shabby state that they did, all the hire-cruiser firms would be out of business. They are not. I do not care what my noble and learned friend says about what actions may be brought: in fact the actions are not brought. There is no need to take away the public rights of navigation.

We are being asked to exchange our birthright for a mess of pottage in this case. We are being asked to give away much too much for much too little reason. If the public right of navigation cannot be restored by the clause which we want to put in because we cannot make the clause stand up, then the only thing we can do is to go on to see if we cannot get a new clause which allows us a public right of navigation.


This Amendment is in two parts—to leave out the present clause and to substitute a new one. For the reasons given by my noble friend who moved it, we cannot press for the new clause, which would make the Bill hybrid, but I think the omission of the present clause may be for the convenience not only of the opponents of the present clause but also, I should have thought, of Her Majesty's Government, because there is so much that is wrong with the present clause that I think it would be much better if, on Report stage, they were in a position to move the insertion of a clause which, on reconsideration, they thought to be the right one.

It seems to be my fate, whatever Government are in power, to have to fight for the public in order to retain their rights of navigation. Section 61 of the 1962 Act stands in the form in which it does as a result of an Amendment which I moved in this House and which was eventually accepted by Her Majesty's then Government. The importance of Section 61 is that it prevents the Board from using their commercial freedom under Section 43 of the 1962 Act to impose prohibitive charges and conditions where they want to keep the public from using a particular canal. Such charges would be inconsistent with the section as it now stands and, incidentally, would make nonsense of the compensation provisions in the Act and the special provisions of Section 64. But it is now proposed, as has been pointed out by the previous speakers, to abolish the public rights of navigation altogether. When one looks at the waterways to which this applies, which are shown in the Schedule, one sees that it would deprive the public of all rights of navigation of Loch Ness, as the noble Viscount, Lord St. Davids, pointed out, of the Trent, of the Severn and of the Lea.

There is, of course, no conceivable case for doing away with rights of navigation which have existed throughout our history. Therefore, it seems to me to be quite impossible to justify the provisions of subsection (7). Subsection (6) must quite obviously go. I think this Committee would have struck it out on a previous Amendment but for the very reasonable attitude taken by the noble and learned Lord the Lord Chancellor, when he promised to reconsider this subsection which had been the subject of so much damaging criticism. Subsection (1) is clearly incomplete, making no mention whatever of the rights of navigation.

Subsection (2) ends in a passage which appears to me to be sheer gibberish. I assume that there is somebody who understands what it means. It concludes with these astonishing words: … save as aforesaid, the duty imposed by that paragraph shall extend to any vessel of the kind therein mentioned as respects the dimensions of which paragraph (a) or (b) of this subsection is satisfied. How a paragraph can be "satisfied of … dimensions", I cannot conceive. It may be that some words have dropped out; it may be that a page has dropped out. But certainly the words as they stand, whatever else they do, do not make any sort of sense and cannot be construed in the English language.

I have dealt with subsections (1), (2) and (6), and also with subsection (7), which abolishes all the rights of navigation and, together with a subsequent subsection the Common Law rights. The conclusion of subsection (5) is very difficult to construe. It could have been put in only on the assumption that the draftsman overlooked the fact that Common Law rights were being abolished by the clause. I am inclined to think that subsection (8) is not required at all, because I think the Board could acquire an inland waterway only by legislation—and, if they did, the legislation could provide for the circumstances that arose. The conclusion of subsection (10) is also quite inappropriate and difficult to construe, having regard to what is done to Common Law rights.

Those being the facts about the clause as it stands—and I do not think the facts can he seriously disputed—I am sure that it would be in the interests of the Committee—of the Government side, no less than of this side—to adopt that part of the Amendment which proposes to leave out the clause. In other words, we should not let the clause stand part of the Bill.


I should like to add a few words to what has been said on this very important subject. I think we are left in the position from which Lord Conesford saved us in 1962. I remember that occasion very well. The Bill came before Parliament in a state in which the Minister had not realised that the public were being deprived of important rights conferred upon them in all those Acts of Parliament which permitted the building of canals, rights which had grown up at Common Law over important river systems which became part of the canal pattern in the country established in the 18th Century. It may have been an accident that the Bill came before Parliament framed in that way. But I doubt it; I think it was a plot. Ministers sometimes do not realise what is going on behind the scenes. Certainly, if it had not been for the Amendment which the noble Lord, Lord Conesford, moved in 1962, and which has come to be called the Conesford Amendment, the public would have been deprived on that occasion of these very important rights.

Since that time the Government—a different Government—have been persuaded that the amenity values of the canal and river systems are of the greatest importance to the community. Yet here again, in 1968, we are faced with the same sort of attempt as that of 1962 to deprive a very important section of the public—indeed, the public as a whole if they like to make use of them—of their rights of navigation over these canal and river systems. This is a very serious business. It may be said that the organisation which has been set up will not in practice deprive the public of these rights; that the publlic will be allowed, on payment of licence fees and so forth, to use the system. That is no doubt true. But that is the sort of specious argument which is always brought in on these occasions: that, "You are not really being deprived of your heritage. We will allow you to go on using it; but you must use it in the way we want and on the terms that we shall lay down." That is typical of the Whitehall method. But to a large extent Parliament exists to defend the public against loss of their rights.

There is another important aspect of this matter. The draftsman must have been thinking that he was here dealing solely with artificial canal system; constructed since Brindley built the first canal in England. The draftsman seems to have overlooked the fact that a great deal of the system depends on the incorporation in it of rivers and of lakes like Loch Ness, which were there long before the canals were thought of and over which rights of way in navigation by boats and so forth have been established. Otherwise, I doubt whether the draftsman—and still less the Minister—appreciates what is being done in that regard.

I think it is important that these rights should be protected; and, so far as I can understand this rather complicated clause, it appears to me that they are being taken away—and I refer not only to the rights given by Acts of Parliament but to rights at Common Law and to the rights of the riparian owners. If you own property on the bank of a river like the Severn (which has become part of the canal system), then long before it became incorporated you were using your navigation rights over that water for purposes of carrying your goods, for your recreation, for fishing, for visiting your neighbours and all that sort of thing. If the noble and learned Lord the Lord Chancellor takes a different view, I stand to be corrected on this; but I think that it will be possible in future for the organisation to prevent those riparian owners from using their own banks of the rivers for boating and other purposes unless they agree to pay such permit fees as may be laid down. This is another important aspect which I think needs to be put right.

The noble Lord, Lord Conesford, has referred to subsection (2). I had the same puzzlement over the final part of that subsection. I agree that, on the face of it, it is gibberish. There may be some sort of lawyer at some stage who will be able to say what it means. Quite apart from that, surely this is a nonsensical clause. It establishes, or tries to establish, a kind of test in relation to the size of boats and otherwise on the canal which cannot possibly still be viable at the end of 10 or 15 years. Nobody looking at this clause could regard it otherwise than being legislatively meaningless. quite apart from the gibberish in which its last phrases are concocted.

One could go on making a number of detailed criticisms of this kind. Would it not be very much better if, as happened as I remember very well in the case of the National Parks and Access to the Countryside Bill, in the time of the late Lord Addison, we all got together and tried to hammer out a reasonably viable clause; because I am quite sure that the one at present in the Bill is not reasonably viable. In the case of the earlier Countryside Bill there were difficulties which were exposed on the Floor of your Lordships' House; and Lord Addison suggested that those concerned about this matter, the Opposition, and those on the Government side who were carrying the Bill, should meet him in his room, with their advisers. This was typical of a method of legislation which was used not only on that occasion but in connection with the Companies Bill and on other occasions during the life of that Parliament. There is so much in the clause as it stands at present which does not make good legislative sense that I think it would be right that it should be looked at in close detail by a small number of Peers. I suggest the same sort of method as was adopted in the time of the National Parks and Access to the Countryside Bill when a meeting of a small number of Peers took place and reasonably viable clauses were hammered out.

7.2 p.m.


I would say to my noble friend Lord Chorley that I am always glad to see anybody, and in fact I have had long sessions discussing this Bill with my noble friend Lord St. Davids. I am far from saying that this is an easy subject, or that there may not be misunderstandings. Perhaps I should start by saying that if it were accepted this Amendment would not only wreck the Board financially but make the Bill hybrid. I have consulted the Public Bill Office of your Lordships' House and the Parliamentary draftsmen, and I am told there is no doubt at all that the Amendment would make the Bill a hybrid Bill. There is, of course, nothing to stop your Lordships' from throwing out the Transport Bill, or any other Bill, but I hope that, if that is to be done, it will be done openly and not covertly. I am not suggesting for a moment that the noble Earl, Lord Kinnoull, knew when he put down the Amendment what would be the effect—I am quite sure that he did not. But if the Amendment were carried the Bill would be lost.

I am sorry, but I have agreed with so little of what has been said about the clause in the Bill that I am in some despair. May I briefly go back? The position to-day—and it is always the position where a new form of transport supersedes an old one—is very much like the position once occupied by the roads. In the 16th century the roads were repairable by the inhabitants at large, and everyone had to give up four days a year to mending them. In a later Act of the same century the period was six days. Some magnificent roads were left us by the Romans, but whether it was because we lost the know-how or had no resources or materials—whatever it was I do not know—if one takes the 17th century, our roads were in a pretty miserable state.

Then, just about the early part of the 18th century it occurred to some people that if they went to Parliament and got an Act enabling them to make a road from A to B, with provision for compulsory powers of purchase, and some way of fixing the purchase price, and providing for a toll; and if they could get tolls for 21 years by putting "turns" (as they were called), that is to say a gate or a bar, across the road, they could make a good deal of money. This was so in the case of the first one or two attempts; and then everybody did it, and you had these dozens and dozens of Turnpike Acts, mostly for 21 years, with the right to take tolls from those going along the roads. These did extremely well and were very successful. At the end of 21 years it was still necessary to have money to keep the roads in repair, so that invariably the Acts were renewed. In fact, we reached the point where, instead of having a great number of Turnpike Acts renewed, there was an annual Turnpike Continuation Act.

Then an awful thing happened, because somebody invented the railway track which absolutely killed the roads. We have lived in an age when we have seen the roads kill the railways, but at the time when the railways were invented the roads were killed; because everybody who had to travel long distances, and people who had heavy goods to carry, went by railway. They gave up the horse for the "iron horse". All those who went by train and all the goods which were carried in freight trains were people and goods which would have paid tolls had it not been for the existence of the trains. So, gradually, the turnpike roads began to cease to pay. Although people had all sorts of private rights under the Turnpike Acts, what was the good of them? There were all sorts of individuals who had particular rights. There was the landowner across whose land the road was built, who did not have to pay the toll, and so on. Bat these rights were no longer much good. It was rather like all the rights under the 600 old Canal Acts. The turnpike rights were not much good because, one by one, the turnpike trusts all "went bust". Grass was growing up even in the middle of the Great North Road. It may seem extraordinary now, but this was the effect on the roads of the invention of the railways.

It was at a date later than the construction of turnpike roads that it first occurred to somebody to go to Parliament and get compulsory powers to buy land to make canals and then to charge tolls on the canals. I do not know whether it was as a result of the success of the Turnpike Road Acts; but this is what happened from 1760 to 1840. when all these canals were built. In general, there was no public right of navigation on the canals. I do not know whether there was on the roads. I do not know whether, technically, a turnpike road was a highway. Obviously, the owners encouraged people to use the roads because that was the way they got their tolls.

Curiously enough there was a public right of navigation—if that is the right term to use—on the railway track, provided, of course, that you brought your own engine and coaches with you. If your Lordships want to know how long that lasted, it lasted until nine years ago, when the statutory right for All of us to have our own trains on the tracks was repealed in a Statute Law Revision Bill. It is true that the right had practically never been used, but this was because the Court of Appeal at an early date held that although, of course, every true Britisher had the right to put his train on the track, there was no obligation on the railways to work the signals or the points.

At one time the railways were, I think, public carriers, but now they are not. While I am not an expert in this branch of the law, I am told that there is no public right to travel on a railway. When you get to the booking office the clerk can say to you: "Your hair is much too long, and I am not going to sell you a ticket." It is all a matter of contract. It says on the front of the ticket: "For conditions see back." Then on the back it says:" "Issued according to the rules, regulations and by-laws". And if you are a careful lawyer, like me, and you do not like to make a contract without knowing the terms in advance, you say to the clerk: "Where can I see a copy of the rules, regulations and by-laws?" But it is extremely difficult to find them.

With the canals, there is no reason why there should have been a public right to navigate. One or two of the Acts may have given it, but in general they did not. 1 have an Act here of 194 sections. What it does is to provide for the tolls on freight. Canals were made for freight. They were not made for pleasure craft or passengers, and ordinarily such people are not referred to in these Acts at all. The canal was in land which the canal company had bought; it was their property. They had made the canal themselves with their own money. Why should there be a public right of navigation? The only right, if one existed at all, was to carry your freight on the barges. As I have said, I do not suppose that there was much need of a public right for that, because obviously it was to the interest of the canal company that the public should put their freight on the canals, as otherwise they would not get their tolls.

I am talking now, of course, about the manufactured canal: there was a public right of navigation on the river. On rivers like the Trent and the Severn there has been a Common Law public right of navigation for centuries. But I am talking about the manufactured canal, which a canal company built with its own money, on land which it bought for itself. It is a complete delusion for the Inland Waterways Association, if I may say so with respect, to assume that on these manufactured canals there was any public right of navigation. The only right of navigation, if any, was for people with freight barges, which is what they were made for.

The invention of the railway had exactly the same effect on the canals as it had on the roads. After all, when the canals were built they were not slow. The only alternative was a horse and cart, and it was a horse that dragged the barge. So the rate of travel was the same. But once the trains arrived, naturally nearly everybody used the railways. Then the railways started buying up canals. Sometimes they drained them and put a track down; but more often they wanted them for the land in order to put a railway alongside the canal. And, as we know, Parliament put an obligation on the railways to assume the liabilities of the canal company. Sometimes, of course, it worked the other way. The North Staffordshire Canal Company saw that the railways were making money and they said: "We evidently live in an age of advanced technology. What does A. do now?" And the answer was what they did: A. empties his own canal and puts a railway track along the bed. That is what they did.

Perhaps we should ask: What ought to have been done about the roads? What was done? There were all these dozens of Turnpike Acts; the roads were in a shocking state. What was to happen? The sensible thing, obviously, was either to repeal all the old Turnpike Acts or to revoke all the private rights in them and then to enact a modern sensible Highway Law, which would preferably put a duty on some local body, which had the power to levy rates, to keep die roads repaired. This is really what they did, and this is why we have the famous Highway Acts of the 19th century. Ultimately, of course, the local authorities came in; the burden was put on them, and particularly on the counties, with power to rate the inhabitants.

If your Lordships ask, "In the Act to abolish all the old Turnpike Acts did they compensate people for their private rights under those Acts?" then the answer is that they never passed the Act, because, as all the Turnpike Acts were renewable, all they had to do was not to renew them. If only the Canal Acts had been renewable!

We are in this position. We have 600 old Acts of Parliament, of great length and complexity, applying to the canals. We have a bankrupt organisation, in the sense that everybody agrees that not only can the system not possibly pay, but if we want to have pleasure cruising as well it is going to cost £1million, anyway. We are really not in a position to resurrect private rights contained in these 600 Acts going back about 150 years.


If I may interrupt for one moment, the extraordinary thing is that in the Bill you are compensating for private rights, but not for public rights.


There are no public rights. This is what I am trying to point out. It is a mistake to suppose that somehow or other there was a public right of cruising on the manufactured canal. There was on river navigations. I have never understood where a public right on a manufactured canal comes from. I have read a number of these 600 Acts, but by no means a large number. It is not given by statute; it cannot fall out of the sky. I have never understood how it is supposed that in canals manufactured by companies on their own land, the public in some way acquired a right of navigation for pleasure purposes. The Government are quite satisfied that such a right does not exist.

It is quite true that this old liability of the railways who inherited the obligations of the old canal companies survives, but as nobody has the money to do this, Section 64 of the Act of 1962 was a protection. Everybody knew that no modern canal organisation could possibly afford to carry out the stringent obligations of the 1873 Act; first, because the rights and obligations under the local Canal Acts and the 1873 Act are certainly rights and obligations relating to freight transport. Whatever else they cover, they certainly relate to freight transport, for this is the purpose for which the waterways were constructed. So long as the rights and obligations continue, the creation of modern maintenance obligations based on modern needs is impossible, because in the case of the cruising waterways, at least, modern needs are quite different from what they were 150 years ago.

Secondly, maintaining a waterway for freight transport involves heavier expenditure than maintaining it for pleasure cruising and other recreational purposes. This is because the canal craft for the carriage of freight requires a greater depth of water than the modern cruising craft does. Thus to continue these old rights and obligations of the 1873 Act on waterways which are to be preserved for amenity purposes would simply waste a great deal of the taxpayers' money.

Thirdly, the continuance of these old rights and obligations makes it impossible for the Board to redevelop a remainder waterway in the case where the old rights and obligations still exist, as they do on about 300 out of 600 miles of waterway in this category. This means that such a remainder waterway cannot be water channelled; that is to say, have locks replaced by walls—an operation which materially reduces maintenance costs—nor could it be de-watered or filled in. This is because the waterway is still subject to the public rights of navigation which cannot be lawfully obstructed by deliberate action so long as they remain. The result would be that money which is really needed for the commercial and cruising waterways would have to be spent on the remainder.

The Government are most anxious to make the new deal for the nationalised waterways a reality and not a sham. In order to do so the old Local Act navigation rights and maintenance obligations will have to go. They are being replaced in this Bill by a new and positive duty on the Board to maintain the commercial and cruising waterways in a suitable condition for the craft that use them now. This will be a realistic obligation which any person can enforce in the courts if a serious breach of the obligation should occur. Unless we do this, the categorisation of the waterways proposed in the Bill will he entirely or partially ineffective. Without the provisions in the Bill, the Board's administration of their system would continue to be hampered by complex rights of uncertain extent and effect, which have their origin in conditions which have long since ceased to exist. Perhaps even more important, it would be quite impossible for the Board to maintain the waterways within the financial and other resources which the country can afford.

I can assure your Lordships that there is nothing in this clause in the Bill which takes away anybody's Common Law rights or anything that is his right under those old Acts. It does not take away anybody's Common Law right to navigate; it does not take away anybody's Common Law right to bring an action of negligence or an action of nuisance or an action under the Occupier's Liability Act All it does take away are these useless old rights under these 600 old local Acts, and of course the equally old rights under Section 17 of the 1873 Act which it would he impossible to-day to comply with financially. For those reasons—and I apologise for having spoken for so long—I ask the Committee n at to accept the Amendment.

7.23 p.m.


I am grateful to the noble and learned Lord for his long reply. I naturally bound the reply astonishing, as I think other noble Lords may have found it, if only because we were unanimous in trying to restore the public right of navigation. I find it astonishing because in the 1962 Act, as I understand it from reading back, there was not this right of public navigation: and in the other place during the Committee and Report stages there was no mention of it again. From private conversations again I have understood this. For those reasons I find the noble Lord's reply astonishing, but I certainly should not wish to cross swords on a legal matter with him and, as I said earlier on when I introduced the Amendment, I will withdraw it because it is defective. Perhaps we can study the noble and learned Lord's reply and put down another Amendment, if necessary, for the next stage.

Amendment, by leave, withdrawn.

On Question, Whether Clause 104 shall stand part of the Bill?


I quite agree that the Amendment which has just been withdrawn could not possibly stand, but I do not think anybody can have been satisfied with the answer, either. It was defective in a number of ways which I do not suppose the Committee wants to listen to anyway, because a long succession of errors on technical facts is not something which I think we should inflict on the Committee at this stage. However, I should be perfectly prepared to argue that there was considerable passenger traffic. In fact, I could show plans and photographs, and even a model in the Transport Museum, of passenger craft operating the canals in former days. But, apart from that, there is a public right of navigation and it is contained in the Railway and Canal Traffic Act 1873, Section 17. That Act was not actually a conferring Act, but that section emphasised and preserved something which already existed. In 1873 when Parliament passed Section 17 of the Railway and Canal Traffic Act it was not conferring a new right of navigation on the public; it was making sure that when the Railways got hold of a canal they did not abolish the public's right. It was not inventing something new in 1873. It was just making sure that, so far as the railways were concerned, the waterways they got hold of were not done away with by some kind of subterfuge. That was the purpose of Section 17. That is why it was so valuable when the noble Lord, Lord Conesford, preserved it for us in the last Transport Act, and why it is so valuable now.

I quite agree with my noble and learned friend that we need modern maintenance obligations and not the old ones, but they could quite easily be got by cutting down Section 17. In the case of the cargo waterways there is no case whatever, and nobody has made a case—there has been no attempt to make a case—why on the cargo waterways Section 17 should be abolished. It is doing a good job now and nobody has denied it or shown any reason why it should be got rid of.

The Amendment could not stand, but this clause is not right and is full of holes. It has been shown to be full of holes, and better could be done. I believe that we should do what my noble friend Lord Chorley suggested, and I suggest that to my noble and learned friend. Why cannot we have a Committee upstairs or somewhere else where we can thresh out what the clause should be in place of Clause 104? Let us do that. Let us remove Clause 104 from this Bill and then have a Committee to sort out a proper Clause 104 to put in its place.


I frankly thought when I spoke, and still think, that that would be the most convenient course, for this reason: I think there is a great deal in Clause 104 as it stands which really cannot be justified. The noble and learned Lord gave us a most interesting speech. He talked a great deal of what the clause was supposed to do, but very little of what it did do which it should not do. I should have thought for that reason that it would be for the convenience of everybody if this clause were omitted and the Government then put down on Report stage a clause which they thought they could justify in every detail. I think that that might shorten the proceedings on Report. The alternative is, of course, that we shall have to attack on Report every single thing in these many subsections which we believe to be wrong, which I should have thought would take the House much longer. However, if it is the considered opinion of the noble and learned Lord that he wants the clause, with all its defects, I do not suppose that my noble friends want to divide on this occasion.

Clause 104 agreed to.

7.30 p.m.

VISCOUNT ST. DAVIDS moved Amendment No. 260Z: After Clause 104, insert the following new clause:

Section 104 not to affect Attorney-General v. Waterways Board

(". No provision of section 104 of this Act in so far as it operates to exclude the jurisdiction of the Courts or to modify the public rights of navigation or the duty of the Board as regards maintenance shall apply to proceedings now pending in the Chancery Division between the Attorney-General as plaintiff and the Board as defendants in relation to the Ashton Canal and that part of the Peak Forest Canal the subject of those proceedings.")

The noble Viscount said: This is an Amendment which I do not want to move at all, for the simple reason that if it is accepted we should not get the best of three alternatives but only the second best. The worst alternative, incidentally, is the Government's proposal. The fact of the matter is that there is an action at law now pending in the matter of the Ashton canal and the Peak Forest canal. The reason for the action is that the people in the area, those who wish to use the canals, and the local authorities, believe that they have a considerable chance of keeping the canals in good working order, and that it will serve a useful purpose for the area. They also think that it will cost the Government nothing, because they believe that they can take over the canals and run them at their expense, without one penny of the cost falling on the Government. This may or may not be true. The Government do not seem to think so, and as the Bill now stands the Ashton and the Peak Forest canals are like the remainder waterways, and should this Bill go through as it now stands those waterways will be closed.

There will be no public inquiry, as is intended under the new provisions of this Bill. There will not even be a Private Bill procedure upstairs. After all, the old method of closing a waterway had very considerable defects: it was expensive; it was not as efficient as the modern public inquiry; and not everybody could be heard. There was information of all kinds which was not relevant, but it was an inquiry of a sort. It had its defects, but it was an inquiry.

The modern idea, the idea in this Bill, is far better. There is the recommendation of the Advisory Committee; there is the public inquiry. It is all much quicker, much cheaper, much simpler, many more facts can be put on the table, and it is a much better way of d Ding it. If the Bill has its way; we shall not get the one or the other. We shall not even get the worst alternative, which is that occurring at the moment, of proceedings in the Chancery Division between the Attorney General, as plaintiff, and the Board as defendants, to look it to the matter of the waterways. This procedure is not as good as the other methods, anyway, because what are they inquiring about in the Chancery Division? They are not inquiring as to whether the waterway should or should not be closed; they are arguing about whether it should have been closed; whether it is legally closed, or illegally closed, which is not really a question we want to go into.

If this is allowed to continue, if the Bill goes on as it stands, it produces a further evil. It produces an action at law which is brought to a sudden end by a Government's Public Bill. This I believe to be a bad policy. It has been done before, I know, and there are many cases which can be quoted. There are sometimes good reasons for doing it, but it is a thing which one should mold, if possible; it should be done only if there is a really major policy reason, and so much right on the other side that it is clearly the right thing to do to bring the action to a stop. But this does not apply here. If this action is brought to a stop as the Bill now suggests, without this Amendment, we will have killed the action, thus bringing considerable opprobrium on the Government for stepping in and interfering with the proceedings of a court of law. We will have closed this waterway without any form of useful inquiry at all.

There are two ways of putting this evil right, and the worst of them is to move this Amendment which would keep the action at law going. That would be better than the action which the Government are taking, but there is a better way even than this, that is, to take the Ashton and Peak Forest canals out of the list of the remainder waterways and put them in the list of cruising waterways, and for the Minister of Transport immediately to say, "Now I will close them under our new procedure". If he doe; that then this expensive action will be brought to an end; the Government will not have to face the opprobrium of having stopped it, because it will stop purely because the defendant will have granted the plaintiffs what they require. We shall be able to have a proper public inquiry, and at that public inquiry we shall be able to get at the facts, which is what we want, because the Board is closing these waterways because it says that the repair of them is expensive. The local authorities and the enthusiasts on the spot say that it is not expensive; that it is cheap and easy. We have a pure clash of fact—Yes and No. This is the kind of thing a public inquiry can sort out, and which can be sorted out in no other way.

If my noble and learned friend will say that he will consult the Minister to see whether the Ashton and Peak Forest canals can be put on the cruising list of waterways (not so that the Government will have to spend hundreds of thousands of pounds on repairing them—we are not suggesting anything of the sort, for that would be nonsense—but simply so that we can go on from there to use for the first time the new provisions of this Bill, which are good provisions, which we like, which we want, and which we want to see used) then there is absolutely no purpose in moving this Amendment and we can throw it on the floor straightaway.

We want to find out the facts on which there is complete dispute. Surely, the proper way to do that is to hold a public inquiry. If we do it in this way, then there is no opprobrium on the Government for stepping in and smashing up an action at law, and everything can be simple and easy. It simply requires my noble and learned friend to say that he will consult the Minister as to whether these waterways cannot be put on the cruising list temporarily while we find out the facts. I beg to move.


I should like to say a few words about this Amendment, which I think raises a very special problem. There are 18 local authorities involved in the action which is pending against the Inland Waterways, and there is, I think, considerable local feeling about this, because had it not have been for the introduction of this Bill their case would have come on and would have been settled in court.

As the Bill is at present drafted, the Government are really stepping in and changing the rules in the middle of the game. This has caused a good deal of feeling. It is a very special problem and. as the noble Viscount, Lord St. Davids, has said, there are two solutions to it: one is by means of the Amendment which we are discussing at present, to exclude the Peak Forest and Ashton canals from the operation of the Bill, thereby leaving the court free to deal with the action on its merits, and for the Government to classify these canals after the action has been heard. There is the second alternative, to which the noble Viscount has referred, and for which he and my noble friend Lord Kinnoull have subsequent Amendments down, which would put these canals into the cruiseway list. That would mean that the matter would be sorted out under the provisions of the Bill when it comes into force, and thus waterways would not be destroyed when there is an action pending which concerns their future.

It seems to me it is an elementary matter of justice that something must be done to resolve this problem. This is in a way retrospective legislation, because it is taking away a right from 18 local authorities and others which they had before the Bill was introduced. Therefore I hope the noble and learned Lord will be able to meet this point somehow in the same generous way in which he met a previous Amendment which raised, not exactly the same point but one having the same principle.


I should like briefly to support the noble Viscount, Lord St. Davids. I believe this to be a very serious matter, the more so when one sees the reply given by the Minister in a letter to Members of Parliament, in which he said: It would of course be inappropriate for me to comment upon the points at issue between the claimants and the Board in the litigation referred to by the Inland Waterways Association, since the matter is sub judice. This litigation, in which the Minister of Transport is not involved, concerns two particular waterways only, and the situation could he different from the situation in respect of other waterways. The waterway clauses in the Transport Bill are directed to the waterway board's system generally and not particularly to these two waterways. These provisions have been included in the Bill because the Government considers that they arc in the public interest, and we see no reason why Parliament should not debate and pass general legislation in the public interest, even though it may have a bearing on the current litigation between parties. This is a serious matter. The noble Viscount, Lord St. Davids, explained that this action has been going on for something like three years. It involves 18 local authorities and a further 12 bodies. They applied to the Attorney General, who granted the fiat after this Bill was published. We understand the case cannot possibly he heard until after the Bill goes through. The only precedent one can consider at all is that of the Burmah Oil Company, which was a matter where legislation was brought in after the case was settled. The only way out of the serious predicament in which the Government have got themselves is, as the noble Viscount, Lord St. Davids, suggested, to include this canal in Schedule 12. Otherwise it would seem that the Board will simply ask the 18 local authorities to take over this liability and to restore something which has been caused entirely by their negligence.


I cannot help thinking that there must be some misunderstanding somewhere, but it may be mine. In the first place, it has never been thought wrong to have legislation which affects a pending action. I believe that happened in the case of the Transport Act, 1962. What is said here is, "It may be proper but it is hard on somebody who has started an action; they are halfway through and then you come along with this Bill and it kills their action."

The reason I said that there must be some misunderstanding is that I am told that these canals, one of which, the Ashton Canal, has suffered from a lot of mining subsidence and would cost about £195,000 to make navigable, were the subject of some correspondence between those concerned and the Board. This correspondence ended in December, 1965. The Bill was introduced on December 7 last. On January 24 of this year a writ in the action was issued. There is some great misunderstanding somewhere, because the noble Earl talked about the "action which has been going on for three years". If my information is right, they have, as a formality, to get the consent of the Attorney General. His name is added to it but he takes no part. I have here a copy of the letter which was written to the Attorney General by the plaintiff's solicitors, asking for his fiat. That was in December and I am told that the writ was actually issued on January 24. But this Bill had been introduced on December 7, and so far from the Bill being introduced in order to try to stop the action, the truth is that, knowing of this Bill, after it had been introduced they issued the writ in order to try to start an action to spike the Bill.


May I ask the noble and learned Lord whether he implied that the people now engaging in the action had already had correspondence with the Inland Waterways Board that they had really abandoned the whole thing and only started it up again after the Bill was introduced?


That is what I am told: that there was correspondence with the people interested in this canal, that this correspondence finished in December, 1965, and that it was only after the introduction of the Bill on December 7 last that, without any further correspondence at all, a writ was served on (I think) January 24.


Could the noble and learned Lord clear up one point on the question of the Attorney General's fiat? As I understood the position, he gave this fiat after the Bill was published, whereas the node and learned Lord said that in fact the Attorney General takes no part in it. But of course he looks after the public interest.


No, this is a pure formality. As long as it is a bona fide claim he has no real option in the matter. I think some of the parties have tried to make out that he is taking part in the action, but anybody who knows his law knows that it is a pure formality. As I said, the Bill was introduced on December 7 and then, although nothing had been heard from them for two or three years, on December 14 the solicitors wrote to the Attorney General and said: We send herewith the necessary papers in the above proposed action. We submit them to the Attorney General, and we enclose two copies of the proposed writ", and so on. I am not quite sure when the Attorney General gave his consent, but the writ was actually issued on January 24.


It seems to me that there is certainly some misunderstanding here. The noble and learned Lord said that he may he the victim of the misunderstanding, or I may be, or my noble friends, but in view of what he has said it seems that we must obviously try to get this matter sorted out. Of course I cannot speak for the noble Viscount, but I would mention that the same point will arise on the later Amendment.


Perhaps I may try to sort out some of the misunderstanding. Although the action is quite recent, in point of fact the dispute is very old and has been going on for a long time. Efforts have been made to get these boats through this waterway, in spite of the British Waterways Board's efforts to keep it closed, simply because they held that the British Waterways Board had closed it illegally; and there has been not only a vast amount of correspondence with the Board but the matter has been in dispute between the Board and everybody concerned over quite a number of years. Craft have been attempting to get through.

Rallies have been held, including one enormous rally at Marple at one end of the closed section, in an effort to persuade the Board that vast numbers of people want to get through, as indeed they do. The local authorities, taking another look at their waterway, have over the years become keener and keener on the idea of opening it and finally the weight of public opinion is that it should be open. I am quite sure that is now the consensus of opinion in the neighbourhood. What we are trying to do is not so much to fight a legal action—I do not think anybody gives a damn for a legal action—but we are trying to persuade the Government that the proper way to deal with it is to hold an inquiry under the new methods of the Bill and find out what the new facts are: whether the figures are right for the restoration of this waterway and whether there is a body of opinion prepared to put money down on the table.

If there is not a body of opinion prepared to put money down, let the waterway be closed. Nobody is asking the Government to find vast sums of money to keep it open. All we want is a public inquiry at which everybody can get round a table, find out the facts, find out whether somebody is willing to put down the money, whether there is a consortium willing to do the job, and all the rest. We cannot do that without a public inquiry if the Minister just slams the doors and leaves them shut. The reasonable thing would be to list it for closure and then hold a public inquiry, and then we shall know where we are. Otherwise we are flapping around talking about pieces of paper, which is not the best way to do it.


Might I again draw the attention of the noble and learned Lord the Lord Chancellor to the question of the Attorney General's fiat? The noble and learned Lord indicated that the Attorney General takes no part in the proceedings, and simply decides whether in the public interest it is a proper case. If he looks at Lord Halsbury's observations in the London County Council v. Attorney General, he will see that he dealt with the Attorney General's jurisdiction: The Attorney General exercises administrative discretion in deciding whether the action shall be brought. The court does not inquire into the rightness of that decision. The bringing of the proceedings has shown that in the opinion of the Attorney General the act warrants an injunction. This is the nub of the matter, "the act warrants an injunction." The question of spiking the guns prior to or after publication of the Bill I do not think is a sound argument. I think the Attorney General's fiat is a sounder argument.


As I have always understood it, the Attorney General is concerned to see whether it is a case that people can properly bring. He is not backing the action, so to speak; he is not even saying he approves of it. I hope I have satisfied the noble Earl—although our information seemed to be quite different—that so far from this Bill interfering in some improper way with an existing action it is the other way round: after nothing had been said for three years, the Bill was introduced and the action was started to try to spike the Bill.


Is it going to be possible for my noble friend to suggest to the Minister that he should have second thoughts and consider whether these waterways can be put into the cruising waterways list—that is into Schedule 12—solely for the purpose of closing them and holding a public inquiry on that?


I am quite prepared to put that up to the Minister. it would really destroy from the start the credibility of the Board's new maintenance duty if a canal, such as the Ashton Canal, which has not been used for navigation for years and would cost £195,000 to make navigable, is put into that category. If it is done with that, why not have it done with the whole present remainder category, starting them all off in the cruising category, and spend tens of thousands of pounds on inquiries which would last some years. I am certainly prepared to put it to him and see what he says.


In this particular case, considering it as part of the other waterways. I think that might be the more reasonable thing to do, although there is argument to be put for the others. Anyway, with that assurance I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clauses 105 arid 106 agreed to.

Clause 107 [Power of certain bodies to maintain or take over waterways and connected works.]:

7.58 p.m.

THE EARL or KINNOULL moved Amendment No. 260AZ:

Page 143, line 27, at end insert— ("( ) Where it appears to the Minister on an application by the Board or any such body as is mentioned in this section that the Board and such body are willing to enter into an agreement under this section and it is desirable that they should do so but that they are unable to agree upon terms the Minister may if he thinks fit direct that any such difference be referred to the appropriate tribunal for decision.")

The noble Earl said: Clause 107 gives power to the British Waterways Board to dispose of, or arrange with certain bodies to take over, the maintenance of the remainder canals. The purpose of my Amendment is to allow the Board or the purchaser of a canal (the purchaser being one of the bodies listed in Clause 107) to appeal to the Minister and to ask him to refer to arbitration the subject of the value of the canal should the parties fail to agree between themselves. I consider that this power could be useful. It could be useful to the Board, as they will not be able to be accused of asking a ridiculous price from which there is no redress, and of course useful to tie purchasers, because they always feel satisfaction if they can go to arbitration if, in their opinion, a ridiculous (rice is being asked. It will prevent what has happened, or what has appeared to happen, in cases when the Railways Board were attempting to dispose of branch lines which they have closed. There have been quite a number of genuine societies willing to run a closed line on a proper transport basis which have failed to reach agreement with the Board because they claimed that a ridiculous price was being asked. For these reasons I hope the Government will see fit to accept this Amendment. I beg to move.


The difficulty here is that agreement between two parties must of necessity include terms which are acceptable to both; and, of course, where there is money in question it may depend very much on the amount of money involved. If either party is unwilling to accept certain terms which the other party requires, there can be no true agreement. The Amendment seems to imply that the Minister should be able to insist that such an agreement be entered into even though the parties concerned cannot see eye to eye. The Board will be required by Clause 105(2)(a) to secure that each of the remainder waterways should be dealt with in the most economical manner possible, and it would be wrong to impose on the Board an agreement which might conflict with this duty.

Further, by the "appropriate Tribunal" I assume that the noble Earl means the Lands Tribunal, which is concerned primarily with the assessment of compensation. The terms of an agreement under Clause 107 might mean that it would have to consider other matters on which it might not be appropriate for the Tribunal to adjudicate. It is mainly for those reasons, that it might make the Board enter into an agreement on terms which they felt they could not afford, that I hope the noble Earl will not press this Amendment.


I am grateful to the noble and learned Lord. I did not mention the matter to press the Amendment, but rather to inquire into the issue. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.2 p.m.

LORD NUGENT OF GUILDFORD moved Amendment No. 260AA: Page 143, line 40, at end insert ("and, as respects any particular agreement or transfer, any other body having public or charitable objects which is certified by the Minister as a body appearing to him to be capable of discharging the responsibilities falling on the body in consequence of that agreement or transfer.")

The noble Lord said: I beg to move the Amendment in the names of my noble friends and myself and with this perhaps I may mention Amendment 216ZA. Clause 107 sets out the list of the authorities who may take over and maintain waterways. They include local authorities, river authorities et cetera. The Amendment would add to the list of bodies in subsection (2) of the clause any other body having charitable objects, provided that the Minister certified them as capable of discharging the responsibilities involved: incidentally, these are usually quite onerous and expensive. This point was strongly impressed in another place, and it would meet the wishes of many people if it were accepted. The related Amendment, No. 261ZA is added in order to remove any doubt that a voluntary body registered as a charity could claim tax relief when embarking upon such a project, and by making it quite clear that the public would have access to the waterway. I think the point is a considerable one and I beg leave to move.


This seems to be a very sensible Amendment, and the Government welcome it for the reasons which the noble Lord has put forward.

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved Amendment No. 261: Page 144, line 16, leave out ("or Monmouthshire").

The noble and learned Lord said: On behalf of my noble friend Lord Shepherd, I beg to move this sensational Amendment. There is actually no need to mention Monmouthshire here at all, because Clause 149, the general interpretation clause of the Bill, defines Wales as including Monmouthshire and says that references to England should be construed accordingly. So we do not need the words "or Monmouthshire".


May I just congratulate the Minister on having discovered this ten years late?

On Question, Amendment agreed to.


I beg to move Amendment No. 261ZA:

Page 144, line 16, at end insert— ("( ) Any agreement under this section whereby a waterway or part of a waterway is to be maintained by, or transferred to, a body to which this section applies may include provision for securing that the body in question makes the waterway or part available for public use.")

On Question, Amendment agreed to.

Clause 107, as amended, agreed to.

Clause 108 agreed to.

THE LORD CHANCELLOR moved Amendment No. 262:

After Clause 108, insert the following new clause:

Access agreements and orders as respects canals other than commercial waterways and cruising waterways.

(". Subsections (2) and (3) of section 16 of the Countryside Act 1968 (which enable access agreements and access orders to be made under Part V of the National Parks and Access to the Countryside Act 1949 in respect of canals and of certain land held therewith) shall apply as respects, and as respects land held with, any canal or part of a canal owned or managed by the Waterways Board which is not for the time being a commercial waterway or a cruising waterway; and accordingly in subsection (6)(c) of that section (which prevents the said subsections (2) and (3) from applying where the canal or part of a canal is owned or managed by the Board) there shall be added at the end the words which is for the time being a commercial waterway or a cruising waterway within the meaning of section 103 of the Transport Act 1968 '.")

The noble and learned Lord said: I beg to move this Amendment on behalf of my noble friend Lord Shepherd. This is the Amendment about the Countryside Act to which I spoke before. I beg to move.

On Question, Amendment agreed to.

Clause 109 [Power to extinguish certain statutory rights and obligations in respect of canals not belonging to Board]:

THE LORD CHANCELLOR moved Amendment No. 263: Page 145, line 24, leave out from ("canal") to first ("the") in. line 25 and insert ("which is not comprised in the undertaking of").

The noble and learned Lord said: May I, in moving this Amendment on behalf of my noble friend, refer to Amendments Nos. 264, 265 and 266. These are all simply drafting Amendments. The term "proprietor" is deficient in two respects: first, it does not exclude from the provisions of Clause 109 all the Waterways Board's canals. The Board do not necessarily own all the canals in their undertaking: they may simply manage them for the purpose of navigation. Secondly, it restricts the application of the clause to the owner of a non-nationalised canal. This restriction was not intended. The obligation to maintain a canal for navigation might rest on a person who does not own the canal but manages it for navigational purposes. The Amendments now proposed make the intention of the clause quite clear.

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved Amendment No. 264: Page 145, line 37, leave out ("proprietor of") and insert ("person who owns or manages").

The noble and learned Lord said: I beg to move.

On Question, Amendment agreed to.

THE LORD CHANCELLOR: I beg to move Amendment No. 265:

Amendment moved— Page 145, line 41, leave out ("proprietor of") and insert ("person who owns or manages").—(The Lord Chancellor.)

On Question, Amendment agreed to.

LORD CONESFORD moved Amendment No. 265A: Page 146, line 13, leave out ("private").

The noble Lord said: I beg to move this simple Amendment. It will be seen that this clause deals with the power to extinguish statutory rights and obligations in respect of canals not belonging to the Board. I am not at all clear why an injured party should not have the right to compensation whether he suffers loss by reason of the extinguishment by virtue of an order under the section of a private right or a public right. The point is that a right has been extinguished and he personally has suffered damage. There seems no reason why he should not have a right in respect of that damage. I beg to move.


The effect of this Amendment would be to make good any loss arising from extinguishment under Clause 109 by making it grounds for compensation. As subsection (4) of the clause is at present, only a person who suffers loss by reason of the extinguishment of a private right will be entitled to compensation. This provision in the case of a canal not belonging to a Waterways Board will be on the same line as the provision of clause 104(9) for the payment of compensation by the Board in respect of loss arising out of the extinguishment of any private rights of navigation on the Board's waterways. The extinguishment of public rights does not generally admit of compensation. For instance, there is no provision for compensation for loss of business as a result of a highway closure—but the essential point is that it would be undesirable to have materally different provisions in this respect for nationally owned canals, owned or managed by the Waterways Board, and for those in other ownership.


I agree that this Amendment is related to what we considered in an earlier clause. As we certainly have to consider that clause at a later stage I am content to consider this one also on the same occasion. In asking leave to withdraw the Amendment I should like to make it clear, to avoid future misunderstanding, that I may restore it at a later stage. In those circumstances, I beg leave to withdrawn the Amendment.

Amendment, by leave withdrawn.


I beg to move Amendment No. 266.

Amendment moved— Page 146, line 18, leave out ("proprietor of") and insert ("person who owns or manages").—(The Lord Chancellor.)

On Question, Amendment agreed to.

VISCOUNT ST. DAVIDS had given Notice of his intention to move Amendment No. 266A:

Page 146, line 29, at end insert— ("( ) In the case of any order made under subsection (1) of this section or any other section of this Act by which the Minister proposes to close any canal or inland waterway any person objecting to the said order shall have the right to demand a public inquiry when making his objection and in the case of a recognised Inland Waterways Authority or any Local Authority who may lodge an objection an inquiry shall be held within 30 days of the said objection being made to the Minister.")

The noble Viscount said: This is an Amendment to make sure that where, under the new provision, a waterway is closed, if anybody reasonably wants a public inquiry then one should be held. This was the Amendment put down to try to bring this about. Having looked at it with various friends, I am not sure whether it is not too wide. One certainly needs some kind of public inquiry if the Minister is going to close a waterway, and there should be a right in the hands of any reasonable person to demand one. The difficulty has always been to define what is a "reasonable person".

We may have drawn this Amendment too wide. I have a feeling that this may well be so. If it is too wide, then the right thing may be to withdraw it. Also, not being a lawyer, I am not too sure whether this is the right place in the Bill for it to be, or whether it should be withdrawn in favour of Amendment No. 275D in the name of Lord Nugent, which not only seems to draw it a little tighter but I think puts it in a better position in the Bill.


Does the noble Lord wish to move the Amendment?


I do not think I shall move this one.

Clause 109, as amended, agreed to.

Clause 110 [Power of local authorities to assist in maintaining waterways for amenity purposes]:

LORD NUGENT OF GUILDFORD moved Amendment No. 266AA: Page 146, line 33, leave out from ("improving") to ("for") in line 34.

The noble Lord said: Clause 110 enables a local authority to assist a waterway provided that it is wholly, or at least partly, within that local authority area. But sometimes a local authority, especially a big city, is interested in a waterway outside its own area but which is visited often by its own ratepayers, and the city authority would therefore wish to contribute to its upkeep or improvement. This Amendment would enable the local authority in such circumstances to do so. I perhaps should declare an interest here, as the citizens of Birmingham come down in large numbers to the River Thames around Bablockhythe. They have never offered to contribute towards it yet, but who knows! if we put this on the Statute Book they might. I beg to move.


This seems to me an admirable idea, and I greatly welcome this Amendment.

On Question, Amendment agreed to.

LORD NUGENT OF GUILDFORD: I beg to move Amendment No. 266AB:

This is related directly to the previous Amendment.

Amendment moved— Page 146, line 35, at end insert—

  1. ("(a) any inland waterway situated wholly or partly in the area of the authority; and
  2. (b) any other inland waterway which is so situated that it can conveniently be used for those purposes by persons residing in the area of the authority.")—(Lord Nugent of Guildford.)

On Question, Amendment agreed to.

Clause 110, as amended, agreed to.

Clause 111 [Interpretation of Part VII]:

8.15 p.m.

LORD CONESFORD moved Amendment No. 266B: Page 146, line 38, leave out paragraph (a).

The noble Lord said: This is the interpretation clause, and I am proposing to strike out paragraph (a), which seems to me much too wide. I should like to put the point quite shortly to the noble and learned Lord. It seems to me that the words as they stand would mean that any reference to a right of navigation over a waterway—a matter with which the Minister may frequently deal in an order—will be held to apply to any right to use or keep any vessel or craft on the waterway or canal. Just think what that could mean. If you have not full rights of navigation over the water you will not be able, if you are a riparian owner, to sit in a boat in order to fish next to your own land. If there were a pub on the other side of the river or canal, you would not be able to row a boat across in order to visit the pub, but might have to take a 10-mile walk in order to do so. 1 cannot believe that all these results are intended. I beg to move.


Questions of definition always raise difficulties. The purpose of Clause 111(1)(a) is to make clear the intention of Clauses 104 and 109. Virtually all the canals were constructed in the 18th and early 19th centuries. At that time, a canal company often avoided opposition to an enabling Bill by conferring on property owners through whose land the canal was to be cut a right to navigate or to use and keep boats or other vessels on the canal". I am told that that is a quotation from a fairly common type of clause. It must be made clear in the Transport Bill that, in the context of Clauses 104 and 109, all these rights are covered by the word "navigation". It is therefore necessary that paragraph (a) should remain in subsection (1) of Clause 111. I do not know whether or not that satisfies the noble Lord.


Frankly, it does not, because it seems to me to make the interpretation very wide indeed. But so much has to be considered at the next stage that I do not wish to divide the Committee at this moment upon this Amendment. I should like to ask the noble and learned Lord, whose need for some words of interpretation I am not disputing, to consider whether this does not go much too wide, because whatever you may think of such a small matter as keeping a coracle on the Severn, the right to do so should not be abolished merely because of these extremely general words.

I know that the noble and learned Lord sees what my point is. He may require something, but I do not think he squires something that confuses, or puts in a single definition, things so diverse. The noble and learned Lord nods to show that he will consider the point. In those circumstances, at this stage I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 111 agreed to.

Schedule 12 [Commercial and cruising waterways]:

8.20 p.m.

THE EARL OF KINNOULL moved Amendment No. 267: Page 233, line 40, leave out from ("Navigation") to end of line 42.

The noble Earl said: I beg have to move this Amendment standing in my name on the Order Paper. With the leave of the Committee I should also like to couple, with this Amendment, the Amendments up to 275A in my name. What I should like to do, if I nay, is to describe briefly the purpose of asking for these additional canals to be included in Schedule 12, and then perhaps I could briefly describe each canal. It may take a little time, but on the other hand I think it would be shorter than if I did it the other way round.

The reason why we should like a further 190 miles of canals included in Schedule 12 is because we believe there is a very strong case for each these canals to be reviewed before they are considered as a remainder canal, and perhaps disposed of. The strong case is that if they immediately start off in the remainder section of the canals there will not necessarily be a public inquiry. The case for all these canals rests on the grounds of amenity, drainage, water carrying and, surprisingly in some cases, on good financial grounds, a subject of which the noble and learned Lord has made quite a lat of mention during Part VII of this Bill.

There are two points to be considered if these canals are not included in the Schedule. If we are correct that there is a strong case for these canals to be included, then each canal will have to be included by separate order to be included in Schedule 12. By accepting these Amendments we will avoid this rather long and possibly tedious method of statutory order. Again, if we are right, there is the strong case that these canals are primarily "priceless" assets, using the word of the Minister of Transport in her White Paper. They are priceless assets for the reason that they give many people a great deal of pleasure and they are in areas, particularly the Birmingham canals, of a high density of population.

The waterways requested to be included amount, as I say, to 190 miles, 86 miles of which are at present not navigable, and I would suggest that this latter, not-navigable, part of the canals could be treated as special cases with temporary relief from the Board against destroying immediately their navigability. As I have said, I do not think the finances of these canals would make a tremendous difference to the Board. In the case of the Birmingham Canal navigation, this particular canal makes a profit, against admittedly the Sheffield section which makes a loss. The cost of abandoning canals, we all know, is very high, not only in finance but on amenity grounds. They just cannot be left to rot. To fill in sometimes costs £100,000 a mile and of course there is the immense loss of amenity to the area, which is difficult to value.

The future of these canals, I would suggest, is very good and bright. Inland waterway cruising is increasing, as we have already said, by 10 per cent. a year. The angling clubs are expanding year by year, as the noble Viscount, Lord St. Davids, has said, and have reached over a million people. Once again without overdoing this description, they are, I suggest, a priceless asset.

Turning to Amendment No. 267, this deals with the Sheffield to Tinsley section of the Sheffield and South Yorkshire Navigation. The top two miles and 11 locks of this waterway are currently navigable and are used to carry nearly 20.000 tons of goods a year to the Sheffield basin. There does not seem to have been a persistent policy of seeking extra trade on this section of waterway at the present time. This, of course, could be expanded. The Sheffield basin is at present used to a small extent for mooring and repairing pleasure boats. In ten years' time there is likely to be such a demand for moorings that the basin, if by then closed, would be sorely missed. I would repeat, there is a 10 per cent. increase a year on cruising craft.

If I may then turn, with the permission of the Committee to Amendment 268A which deals with the Birmingham Canal navigations. This group of canals with the various branches should be considered, I suggest, as a whole—as they were by the British Waterways Board in their very thorough and useful report The Facts about the Waterways. The Report showed that these canals had a surplus of income over expenditure in 1964. Comparatively little of this was attributable at that time to pleasure craft as income from these was apportioned to those canals which were shown as the "home moorings" on the licensed applications. As the suitable rural moorings around Birmingham tend to become overcrowded—and one cannot overstress that there there are already signs of this—more and more boat owners in the Midlands will seek moorings nearer home on the Birmingham Canal navigations.

The network also forms an important source of water for industrial users. In 1964 the annual receipts from this source were over £100,000 and the demand for water by industry is increasing every year. The main through routes are scheduled for retention as amenity waterways. The remainder should be similarly treated. With certain of their useful and still navigable branches they amount to around 60 miles. Almost all at present are in good condition, having carried fairly heavy commercial traffic until comparatively recently. Experience shows that their condition will rapidly deteriorate if this usage declines.

These canals serve a population of over 2 million people and provide almost the only opportunity of water-based leisure activity open to people living well over 100 miles from the coast. At present this is mainly boating and canoeing, but if we get stricter control of pollution there is no reason why angling could not be increased. The network is being increasingly used by pleasure boats. The area has many aspects of industrial archaeology, while several sections are surprisingly rural—around, for instance, Cannock, Smethwick and Dudley. One of the chief attractions is the immense variety of routes available over these canal navigations. The alternative, I would suggest to the Committee is to allow them to become stagnant pools collecting silt and rubbish and eventually becoming a menace instead of an asset—a menace perhaps even to health, and a danger to young people of being drowned. In this event, sooner or later, such canals will have to be filled in.

May I now turn to Amendment 270, which is the Erewash Canal? This canal runs for nearly 12 miles in a northerly direction from the River Trent, through Long Eaton and Ilkeston, to the junctions with the now derelict Cromford and Nottingham Canals. The countryside is very pleasant and is much admired by residents in the area. The large Stanton Ironworks use this canal extensively for their supply of water for industrial purposes. There is a passenger boat service operated on the southern half of this canal, and in Long Eaton the Sea Scouts use the canal. By taking water from the River Erewash the canal alleviates flood problems around Long Eaton. I think this is a very important feature of canals, the drainage they can take off surrounding land. Local enthusiasm for the canal is very great. A local development and preservation association has been formed and local authorities are represented on the committee.

May I now turn to the Slough Arm, which is the subject of Amendment No. 271. The whole of the five miles of the Slough Arm of the Grand Union Canal has been excluded from the amenity network. The Arm is fully navigable, but we understand that plans have already been made to use the last one and a half miles of the canal for road purposes. The canal passes through part of the Collie Valley, for which we believe there is a scheme being formulated along the same lines as the Lea Valley Regional Park. It seems only logical that the canal should be included in the Schedule and the plans for this valley. There is already a boatyard halfway along the Arm at Iver, which has the distinction of being the nearest canal boatyard to London and the only canal yard over a large area which is capable of carrying out repairs to all sizes and types of canal craft. The firm also runs a flourishing and expanding boa t hire concern.

Moorings on the Thames, as I am sure my noble friend Lord Nugent will confirm, are comparatively expensive and are in fairly short supply. The Slough Arm is considerably used for moorings, and it is suggested it could be more used. It does not need emphasis that Slough town itself already has a popular ion of around 200,000 and is fast expanding. At Slough the canal is less than two miles from the Thames at Windsor. It is not impossible that a link could be cut joining the two. As it would cross gravel-bearing land, a substantial part of the cost of the link could be raised by extraction of the gravel. The more that pleasure boating increases, the more likely and necessary a link between the River Thames and this canal may seem necessary. It would enable the Thames craft to join the Grand Union Canal without having to use the tidal section of the Thames below Teddington, and once in the canal they would have a 20 mile lock-free stretch of water in front of them.

I am sorry to go on at some length. Amendment No. 272 involves the Kennet and Avon Canal, which I am aure is well known to many members of the Committee. It is 86 miles long and runs from Reading to Bristol. At present it is only navigable in parts. There is, however, a very substantial demand for its restoration. One lock has been recently rebuilt near Reading, the cost having been covered by the Kennet and Avon Canal Trust, and another should be completed by the end of May. The canal is now the only waterway crossing the South of England. Using the Thames at Reading, it would provide a coast-to-coast route. Unlike a number of canals which cannot be used by craft over 7 ft. wide, the canal can take boats up to 14 ft. wide The scenery through which the canal passes is really outstanding: from Reading, through the water-meadows of the River Kennet, the Marlborough Downs, with views of Salisbury Plain, the Vale of Pewsey and the marvellous Avon Valley just East of Bath.

If I may turn to Amendment No. 273, this involves the Liverpool end of the Leeds and Liverpool Canal. The section involves eight miles of waterway which are navigable and well maintained. The canal is joined to the sea by the docks and links Liverpool by water to the beauties of the Yorkshire Moors. The link to the sea enables boats of suitable construction to cross the Mersey Estuary and, via the Manchester Ship Canal, to rejoin the canal system at Ellesmere Port. The September White Paper laid emphasis on the value of through routes of canals, and I submit that this most certainly is a very important through route. Liverpool is another example of a very large centre of population badly needing amenity facilities. Here, I suggest, is another case for the canal being included.

Perhaps I may now turn to Amendments 274 and 275, which involve the Caldon branch of the Trent and Mersey Canal. This branch, which is nearly 20 miles long, can for convenience be be divided into two parts. The canal runs easterly from Stoke-on-Trent for eight miles to Hazelhurst. This part is navigable. But the second part runs southerly to Froghall, which part at present is unnavigable. The canal runs through the beautiful Churnet Valley and the Consall Gorge. It also goes close to the industrial area in which over one million people live and who again desperately require amenity facilities. The canal has become an integral part of the drainage system of the area. I submit again that it should be considered for inclusion in Schedule 12.

Finally I want to come to Amendment 275A which is the Ashton and Lower Peak Forest Canals. These total about 15 miles and are currently unnavigable and have been the subject of our earlier Amendments. I do not wish to go further in describing them. I beg to move.

8.36 p.m.


I have often heard it said that whatever matter may be raised in your Lordships' House or whatever place may be mentioned here, there is some noble Lord who will rise and say, "I am an expert on that subject", or, "I was there". A great part of the noble Earl's Amendments concern the Birmingham Canal Navigation and the tributaries which run into it or join with it. It so happens that when I was a boy of ten in Birmingham I bathed in the foul and filthy waters of these canals and caught tiddlers there on Sunday afternoons. I know that network of canals fairly well. The noble Earl has mentioned the Birmingham Canal Navigation. It so happens that my first employer was the estates officer of the Birmingham Canal Navigation. I did not work for that body myself, but for a spare time magazine dealing with golfing which my employer used to run on the side. Later on, when I was a local government official in Birmingham, I was responsible for organising the transmission of thousands of tons of household refuse each year along the Birmingham Canal Navigation's channels to the various tips which we had out in the country.

I like these canals and have fond memories of them. They form an excellent network between the countryside, the City of Birmingham and the towns of the Black Country. But my great fear is this. The noble Lord wants to transfer some of these from the purely commercial use to the pleasure sailing use.


No; a sailing enclosure.


Well, my great fear is that some of these are so extensively used for industrial purposes that it would be a pity to interfere in any way with the industrial purpose which they now serve. I would put one final question to the noble Earl. Is the California Canal one of those which he wishes to use? There is a tunnel there one mile long along which I used to travel by hanging on to the stern of one of the boats. I understand that the brickwork of the tunnel is in a crumbling state at the moment and it would be a pity to bring it into use once again. With those few rambling remarks I should like to hear further about this.


I have one small waterway to add to these, the Peak Forest canal—and perhaps it might be for the convenience of the Committee if I moved at the same time Amendment No. 273A. This is part of the Peak Forest-Ashton canals of which we have already spoken. I hope that with any luck the Minister will relent and let us consider those two waterways separately on their merits, because of the action which is now pending. Apart from that, there would be considerable sense in putting these waterways in Schedule 12. It would mean that if the Minister wanted to close them—and, clearly, he does—there would have to be a public inquiry.

There is a considerable point here of which Parliament should take great notice. If waterways are closed now, there is a Private Bill, there is a Committee upstairs and there is an inquiry. Anybody who has reason to object can get up before that Committee and raise his objections. As I said before, that is an expensive and slow business, but it is a way of doing it. Under the new arrangements for the closure of a waterway there is going to be a public inquiry and a ministerial order—a far better way of doing it. But unless these waterways are placed in Schedule 12, there will be a third category where there is no public inquiry at all, no Private Bills Committee, and no method by which anybody concerned can raise an objection. That seems a very extraordinary provision to make.

At the time of the last Transport Bill, the British Waterways Board could easily have included a list of waterways that it wanted to close. No doubt my noble and learned friend will say, "Ah! But that would have made the Bill into a hybrid." Anyway, the British Waterways Board did not attempt anything of that kind. But at the same time as the public Transport Bill was going through Parliament, there was a Private Bill closing various waterways on which there was the usual inquiry upstairs, objections were heard and the waterways were closed in the proper manner which Parliament had laid down.

I do not want these waterways closed by Private Bills. I am quite sure my noble friends are right, and that that method is out-of-date. Why can they not be closed by the modern method which they suggest, and which they say is a good one? One feels that the inclusion of this list of waterways which are to be closed without anybody saying "Yea" or "Nay" almost makes this into a hybrid Bill. I suppose that somebody has investigated the matter and come to the con elusion that that is not so. But it is a very odd procedure to have, in the one class, waterways which are closed by the old method with a Committee upstairs; in another class, waterways which are going to be closed by this new method which we think is a better one; and, at the same time, this other category of waterways on which nobody is going to be given a right to say one word of objection. I think the Committee should consider this matter very carefully and see whether it is a proper way of doing business.

There is another reason why these waterways should be included in Schedule 12. Although, admittedly, it is expensive and a nuisance to hold these public inquiries, if one waterway is not closed as a result it is going to save somebody a great deal of money, because almost the entire list are waterways in urban surroundings which are going to In very much needed in the future. In addition, they are going to be a great expense and nuisance in the future if an attempt is made to close them. A rural waterway can quite often be abolished at a considerably cheaper price than an urban waterway. A whole number of think s have to be done, such as drainage in the area having to be straightened out; hut, in general, it is possible to avoid in-filling, which is very expensive.

Town after town has in the past tried closing and abandoning its waterways but in each case it has been found that if a waterway is just left it becomes an area of rubbish and rats and infection. It does not drain, the water stays in it and there is little one can do to get the water out. Then there starts what has been happening for many years now with the Rochdale Canal. There are letters to the local Press in Manchester from various people along the Rochdale Canal saying, "Why doesn't somebody do something about our wretched old canal? It is full of rubbish and rats, and children are getting drowned. Why shouldn't it be closed?". Then the editorial comment at the end of the correspondence is, "This canal was closed ten years ago." This has become so much the standard thing that it is the arch reason why the local authorities in the Peak Forest and Ashton area are now demanding that their waterway be kept open. They do not want to be saddled in their local areas with what has happened right next door with the Rochdale Canal.

The same thing has now happened in Derby. The Derby Canal was a private canal, but the Derby Canal Company did a property deal and one way or another had it closed. The inhabitants of Derby are now beginning to discover the difficulties, the dangers, the expenses and the troubles of trying to fill in a derelict canal. Your Lordships have heard of another waterway where precisely this same thing is happening, and that is the waterway to Langley Mill which is mentioned in Amendment No. 270. That is right next door to Derby and, as the noble Earl, Lord Kinnoull, has said, there is considerable local public enthusiasm for keeping it open. There certainly is, because it is right next door to the Derby Canal which has been closed, and the inhabitants know what trouble there is when you try to fill in a waterway.

The point is that we need inquiries in these areas to find out just how expensive it is to get rid of the old waterways and to see what can best be done about them. We want to know not only whether the waterway ought to be retained as a cruising waterway but whether it ought to be filled in, how much that will cost, what purposes it can be put to, whether it can be made into a road, whether it is going to be possible to get rid of the water, whether it is going to become a rubbish dump and so on. I am sure it is expensive to hold public inquiries, but if we neglect to have them we are going to get the sort of thing which happened in Derby, where there was no possibility of a public inquiry and where they went ahead and landed themselves with a fine old mess. For this reason I most strongly support the plea that these waterways should be treated in a different manner. They should be put into Schedule 12, and then, if the Minister does see fit to close them, there will be a public inquiry. In that way we may at least avoid some of the troubles which some of these towns have run into.


May I say just a word in support of my noble friend Lord Kinnoull, who has put before the Committee a detailed list of evidently marginal cases? For myself. I accept the general approach of Part VII of the Bill, that this classification has been made by the Board after a very lengthy and expert review of all our canals; but obviously there are some marginal cases, and I feel sure that noble Lords in all parts of the Committee will feel indebted to my noble friend Lord Kinnoull for giving us a detailed and compendious list of them. Perhaps the noble and learned Lord the Lord Chancellor will be able to tell us that there is some way of looking at these marginal cases, and that he will give sympathetic consideration to my noble friend's Amendment.


I should like to put in a word for the Peak Forest Canal and the Ashton Canal, which are the subject of, I think, two of these Amendments. I understand that these canals form part of what is known as the Cheshire ring of canals, comprising a complete circuit of about 100 miles of waterways made up of part of the Rochdale Canal, the Bridgewater Canal, the Trent and Mersey Canal and the Macclesfield Canal, as well as the two canals about which I am speaking. I understand that the restoration of these two canals to a navigable condition would at once restore to navigation the entire circuit of the Cheshire ring, with all its branches off and connections into other inland waterways such as the River Trent, the Shropshire Union Canal, the Birmingham Canals, the Leeds and Liverpool Canal and so on. I very much hope that the procedure advocated by the noble Viscount, Lord St. Davids, will be acceded to, so that a thorough public inquiry can take place in order that the question can be threshed out whether these two canals about which I am speaking ought not to be restored to a proper navigable condition.


It would not be courteous on my part if I did not deal with this subject in detail, but I think, if I may say so, that the whole exercise is unfortunate. We considered the report, The Facts about the Waterways, and found that the B.W.B. need not spend more than £600.000; we decided to spend another £400,000 of the taxpayers' money by adopting what was broadly the Board's proposal—namely, "You can have 340 miles of commercial waterways, and if only you spend an additional £400,000 then the cruising enthusiasts can have another 1,100 miles of waterways; so that, with the commercial ones which they can also use, three-quarters of all the waterways would be open to the cruising enthusiasts". The Government had to decide on the Board's advice which were which. They published which were going to be in which group, and everybody approved. Now there is wanted more money, more money, more money. That will be the effect of all these proposals. These are all canals which cannot be as economically maintained for cruising as those in the cruising schedule. That is why they are in the "remainder" Schedule.

I will take them all one by one, but one of them in particular would involve £1 million, when, the total annual amount which we have to do everything is only £400,000. The first Amendment is to move up into the commercial division a canal which is in the cruising division, and this is the top 5¼ miles of the Sheffield and South Yorkshire Canal. It contains 15 locks, including the Tinsley flight of 11, and over recent years waterborne traffic to the terminal at Sheffield has fallen away. This was all in the Board's report. From the Board's Sheffield terminal the canal passes through the heavy industrial area between Sheffield and Rotherham. Operating, dredging (mainly for traffic purposes) and maintenance are all costly, and the length incurs a heavy deficit". That is the first one.

Then, as to the waterways in Part II of Schedule 12—that is the cruising ones —they were announced in Appendix B to the White Paper British Waterways: Recreation and Amenity, which was published in September of last year. This list of cruising waterways was promulgated after the extensive consultations promised in the White Paper Transport Policy of June, 1966, with all those interested about the extent of the network which it would be justifiable to maintain for use by powered pleasure craft. The list, which comprises almost all the navigable waterways (other than those in the commercial category—listed in Part I of of Schedule 12) in the Board's system, covers about 1,100 miles of waterway. Only a few lengths of waterway (about 119 miles in all) that are at present available for cruising are not included in Part II.

None of the 475 miles of waterway which were unnavigable by powered craft at the time the network was first announced has been included in the list of cruising waterways. It would destroy from the start the credibility of the Board's new duty in respect of the cruising waterways to include lengths that had no powered cruising craft use at the time the Bill was presented. And, of course, it would be extremely costly to restore these waterways. Of the 475 miles excluded for this reason, some 300 miles are already statutorily closed to navigation. Some are in the process of redevelopment. There are some, however, that are potential candidates for restoration, and the provisions of Clause 103(3) will make it possible for a waterway which for the time being is not included in Schedule 12 to be added to it by order. One of the statutory functions of the new Advisory Council will be to advise the Board and the Minister on any proposal to add to the cruising waterways. When the White Paper in which the network was first announced was published, the former Minister of Transport explained in some detail why only navigable waterways had been included in the network and the reason for the exclusion of the few miles of navigable waterway. The Inland Waterways Association welcomed the White Paper and accepted the Minister's statement, and it is surprising that they should, at this late stage, wish to see Amendments made to the Bill which are entirely contrary to the White Paper they accepted so gladly.

Taking each in turn, as I suppose I must, the Birmingham Canal Navigations form a network of 112 miles of canals through industrial urban areas. It is said that there are more canals in Birmingham than in Venice. There has been a sharp decline in the level of commercial freight-carrying over the last twenty years. The traffic still remaining consists of short-distance or inter-factory movements—very little comes on to the network from outside the Midlands. Moreover, the network cannot be said at present to have a high amenity value. From the pleasure craft standpoint, there is little revenue from moorings, as many owners prefer to moor their craft outside the mainly industrial area in which the network lies. A number of the local authorities concerned are giving serious thought to the adaptation of parts of the system to amenity use, and it may be that this picture will change over the years, but it has not done so yet. At present, the essential characteristic of the Birmingham Canal Navigations is that it provides a link from the North-West to the South-East, and the list of cruising waterways in Part II of Schedule 12 preserves just such a 23-mile link, with a branch to the South-West. The future of the remaining 89 miles, much of which is nevertheless important for industrial water supplies, will be the subject of an intensive programme of study and consultation with local authorities, the Regional Sports Council, and other interested bodies.

As to Amendment 270, the Erewash Canal extends 12 miles from Trent Lock, where it joins the River Trent, to Langley Mill. The last mile or so through Long Eaton, which is within easy reach of the important Trent crossroads area, is increasingly used for moorings, but the rest of the canal has been little used by pleasure craft. It passes through mainly semi-industrial countryside which is not particularly attractive. In the light of the limited resources that can be made available for maintaining a network of canals for pleasure cruising and of the need to use those resources to the best advantage, it was not possible to justify including the Erewash in the list of cruising waterways apart from the short length from Tamworth Road Bridge, in Long Eaton, to its junction with the Trent.

Local recreational and amenity interests have expressed concern at the exclusion of the greater part of the Ere-wash from the cruising network. They have been assured that this does not mean that craft will be automatically barred from using the excluded length of the canal or that it will no longer be available for amenity and recreation. The Waterways Board will have discretion to continue to provide facilities along all or part of this length though they will, of course, need to have regard to the economics of the situation. The long-term future of the canal will depend on the results of a careful study by the Board of the costs and possibilities.

As to Amendment 271, the Slough Arm of the Grand Union Canal runs from Cowley Peachey, near Uxbridge, for about five miles to a terminal basin at Slough. There is a major dredging tip at the junction with the main line, and the Arm becomes rather unattractive towards Slough. Like the Erewash, the Slough Arm has not been used much by pleasure craft. Bearing in mind the limited resources that can be made available to maintain a network of canals for pleasure cruising and the need to make the best use of those resources, there does not seem sufficient justification for including the Slough Arm in the network.

In regard to Amendment 272, the Kennet and Avon Canal, which is about 80 miles long, can be conveniently divided into three sections. The centre section is the "problem" section; it consists of about 43 miles of artificial canal constructed from the junction with the River Avon at Bath, through Bradford-on-Avon and Devizes to Bedwyn (a few miles west of Wiltshire-Berkshire border). This centre section of the Kennet and Avon is unnavigable and is maintained only to minimum standards. It is affected by a number of serious engineering difficulties, including shortage of water supplies, which could only be overcome at very considerable cost. Restoration of the centre section has not received serious consideration for a long time. The last round estimate was that the order of cost would be in the region of £1 million. The joint working party set up in 1964 by the Board and the Kennet and Avon Canal Trust, the enthusiast body devoted to the restoration of the canal, did not even consider restoration of the centre section. Then there is the Eastern Section which is estimated to cost at least £80,000.

Then, Amendment 273. This deals with the Leeds and Liverpool Canal. There are special problems on the 8-mile length of this canal between Liverpool and Aintree. It passes through an urban industrial area and is hardly used at all for navigation. Some children were drowned in it and there has been much pressure locally to eliminate the canal where it runs through this built-up area. As a result, a working party has been set up under the auspices of Bootle County Borough Council, on which the British Waterways Board and interested local authorities are represented, to study the complicated technical implications of elimination. The initiative in this rests with the local authorities, though the Board are giving them a great deal of help and expert advice.

Amendments 272, 273A, 274, 275, and 275A I can take as one group. These are all canals not fully navigable by powered cruising craft or included in the British Waterways Board's pleasure cruising licence at the time the cruising network was promulgated. The Government propose to place a new and positive maintenance duty on the Board in respect of the cruising waterways, and the Government intend that the Board should take this duty very seriously. It would destroy credibility of this new duty to include work of this sort. So far as No. 273A is concerned, I think it would be better not to say anything about Ashton and Lower Peak Forest, for they are subject to impending litigation. It is sub judice between those parties. The Ashton Canal has been estimated to cost £195,000 of which £95,000 is payable by the Board. I hope I have fairly covered the Amendments, but they all point to the fact that somebody has to decide what the total has to be at the end of the day. Only a certain amount of money is available: and to be able to make 1,100 miles navigable for the waterway enthusiasts for £400,000 is pretty well done.


I think it a bit hard for it to be said that two canals which are the subject, admittedly, of present litigation must not be discussed in this Committee because they are sub judice, when we know quite well that if this Bill goes through in its present form the litigation now going on will be a complete and utter waste and will be brought to naught. This is a bit tough, in my submission, on these two canals.


I am grateful to the noble and learned Lord for his courteous reply and for its length; but I am disappointed with it. I still do not accept that £400,000 a year is a generous donation to the Inland Waterways. The noble and learned Lord seems to think it most generous; but to many of us who believe in the tremendous amenity facilities that these canals offer, it is really a pittance. When one looks at other nationalised concerns, at the railways' £150 million a year, what is £400,000? I am grateful to other noble Lords who have spoken on the Amendments. The noble Lord, Lord Leather-land, asked about the California Canal. I think I am correct in saying that that is not included in my list of Amendments. In regard to not disturbing the industrial use of the canal, that is one of the prime purposes of getting it in the Schedule—to safeguard industrial users. The noble Viscount, Lord St. Davids, made what I thought to be a clear case for Keeping these canals in the Schedule. I think one must respect his great personal knowledge of this subject. I believe he has a very good point here about the question of a public inquiry.

I was grateful for the support from my noble friend Lord Nugent in pointing out that these canals are marginal cases. The noble and learned Lord seemed to imply, and has done on one or two occasions, a certain resentment, almost, of the body known as the Inland Waterways Association. I think I should declare at once that I am not a member of the Inland Waterways Association but I feel that if this body, which is entirely self-supporting, had not been formed some ten years or so ago, and had it not been for their spirit, I doubt whether the 1,100 miles of canals, or even the 1,400 which we are now protecting, would be here today.

I should like to ask the noble and learned Lord two questions about this series of Amendments. Would the Government consider whether the canals which make a profit (I think I am correct in saying that the Birmingham Navigation Canal makes a profit) could be considered for inclusion in the Schedule, because these really are marginal cases? They do not cost the Board anything. Secondly, could those not making a profit (and I well see the point of the heavy expense which the Board would incur) be put into Part III, which would allow a public inquiry before they were finally pushed into the "remainder" category? I hope that this may be considered. I do not know whether the noble and learned Lord would care to reply to those questions now.


I am not sure whether any of them are making a profit now. If there are any, I will certainly ask my right honourable friend to consider them.


I am grateful for that undertaking. I reserve the right to look at this matter again, but I beg leave to withdraw this Amendment, and I shall not move the others of the series.

Amendment, by leave, withdrawn.

Schedule 12 agreed to.

Schedule 13 [Orders relating to inland waterways]:

THE EARL OF KINNOULL moved Amendment No. 275C: Page 236, line 32, leave out ("to a significant extent")

The noble Lord said: I beg to move this Amendment. The Minister may make an order relieving the owner or manager of an independent waterway of his maintenance duties and removing the public right of navigation. The paragraph to which the Amendment refers deals with the consultations which the Minister must have, but the consultations under this Schedule are limited to cases where the waterway is used "to a significant extent"—these are the words which the Amendment would omit.

There are cases, such as that of the Basingstoke Canal, which one might fear would not be included in this Schedule for consultation because the canal is not used for navigational purposes to a significant extent. The purpose of the Amendment is to put on the Minister a clear onus to consult any organisation appearing to represent persons navigating the canal. This clears away any ambiguity about what "to a significant extent" really means. I beg to move.


This is a short point. A proposed order under Clause 109 is subject to the normal public safeguard—publication of the proposals, lodging and consideration of objections with a public inquiry if necessary. In cases where there is any significant navigational use, it is reasonable to require the Minister to consult the organised representatives of those who use a canal for this purpose. But it would, I suggest, be unreasonable to demand this consultation in cases where a canal was used only occasionally by craft, or was used only by a very few. In cases of this kind it would be for the individuals concerned to lodge an objection to the proposal in the usual way if they desired to do so.


I thank the noble and learned Lord for that reply. This was basically a probing Amendment. I am grateful for his advice, and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE EARL OF KINNOULL moved Amendment No. 275CA:

Page 236, line 35, at end insert— ("( ) In the case of any proposed order under Section 103, 104 or 109 of this Act, the Minister shall consult with any local authority or any river authority for the area in which the waterway is situated.")

This again is a probing Amendment, and its purpose is to lay a duty on the Minister basically to keep local authorities and river authorities fully informed. It is possible that this may not be necessary, but I should be grateful for the Government's reply on it. I beg to move.


The orders under Clause 104(5) and Clause 104(8)(d) referred to in this Amendment are a new class of order which the noble Earl's new Clause No. 260Y sought to introduce. To the extent that this Amendment has not been made, the Amendment now under consideration must also be rejected. I hope that I have this right: it does not sound right to me. But there have been so many changes of numbers.


I wonder if I may intervene for a moment (it may give the Lord Chancellor a little time to prepare his reply) to say that with regard to river authorities, to which my noble friend's Amendment refers, an informal arrangement has been reached between the Board, the Ministry of Transport and the Ministry of Agriculture which will ensure that when the Board are making a proposition for reclassification the river authority concerned will be informed, because the Board will first of all inform the Ministry of Transport, and the Ministry of Transport will then inform the Ministry of Agriculture.

I mention this as the river authorities naturally have a strong interest in what happens to these canals, because in the long-stop position it is the river authority that is responsible for land drainage, fisheries interests and other matters concerned. Therefore, the river authorities (if I may put on my river authority hat for the moment) would like to express their appreciation that in the event the Ministry of Transport have made this informal arrangement for consultation which will ensure that when any proposals for reclassification are being made they will be adequately informed.


I am much obliged to the noble Lord. There seem to have been exchanges about this in another place. The river authorities have a special interest in anything which may affect land drainage, water supply or fisheries. The river authority of any area will have an opportunity to make representations about any proposal for an order under Clauses 103, 104 and 109, and so will local authorities and any other body that may be affected. But, as was said in another place, the Government thought it right, after discussion with the Association of River Authorities, because of the special responsibilities of those authorities, to make certain administrative arrangements, in consultation, about any proposal for any order under Clauses 103, 104 and 109 in addition to what will be required by Schedule 13. There is no need to make it a statutory requirement that the Minister should consult with either the local authority or the river authorities before making an order under these clauses. I hone that this may be satisfactory to the noble Earl, and I apologise for the initial confusion.


I am grateful to the noble and learned Lord for his reply. I was hoping for the moment that, having lost his place, he might have accepted my Amendment. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.19 p.m.

LORD NUGENT OF GUILDFORD moved Amendment No. 275D:

Page 237, line 4, leave out from beginning to end of line 6, and insert— ("Provided that such objection or objections as are made to him are not frivolous, the Minister shall order that a public inquiry shall be held, and shall appoint a suitable person to hear it".)

I beg to move Amendment No. 275D in the names of my noble friends and myself. This has already been referred to earlier, and indeed the noble Viscount, Lord St. Davids, was good enough not to move his earlier Amendment in the expectation that this might be the more convenient place for the Amendment. The effect of this Amendment would be to require the Minister to order a public inquiry in the event of objection or objections being made to a reclassification. The Schedule, as drafted, makes it permissive: the Minister "may" order an inquiry.

The Minister, of course, will have published the proposal. As drafted the Schedule goes no further than saying that he "may" order an inquiry. I do not doubt that in practice he invariably would order an inquiry if the objections seemed to be substantial. That is the purpose of an inquiry: to get out all the facts and to satisfy local opinion. That being so, especially as sympathetic noises were made earlier, I beg leave to move the Amendment.


This Amendment is the one that I really should like to think about. I am sure we ought to be able to find some sense—I do not mean that there is not sense in the Amendment—but we ought to find some formula which is half-way between giving the Minister complete discretion and making him have an inquiry whenever it is not frivolous. I should have thought that the Minister might always have an inquiry where the demand for an inquiry was supported by one of the representative bodies. That is the sort of line I should like to think about, if I may and if the noble Lord will withdraw his Amendment, because, as I say, I believe that something half-way between tie two is the sensible thing to do.


Perhaps before my noble friend withdraws his Amendment I should say that my following Amendment was basically setting out the same purpose, although it was not so well drafted. I shall not move my Amendment, but I should like to support my noble friend.


I am grateful to the noble and learned Lord for his undertaking to look at this point, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Schedule 13 agreed to.

Clause 112 [Transfer of responsibility for maintenance of highways on bridges over Boards' railways, inland waterways, etc.]:

LORD WINTERBOTTOM moved Amendment No. 275F: Page 149, line 31, leave out subsection (8).

The noble Lord said: There are two Amendments here, Nos. 275F and 283A, which it might be convenient, if the Committee agrees, to consider together. These are the first two of a group of Amendments put down by the Government whose purpose is to modify the commencement provisions of the Bill. It might be convenient to say something about the whole group at this stage. The other Amendments are numbers 301Y, 316A and 3I6B, which will come at a later stage in the Bill; and Amendment No. 316B is the substantive Amendment.


May I interrupt? Would the noble Lord be kind enough to repeat the numbers of those Amendments?


I am sorry; I was galloping away. They are numbers 301Y, 316A and 316B, and it is 316B which is the substantive Amendment. I am sorry that this leads us into Part X of the Bill and may be taking the discussion a little wide, but these are Amendments designed to bring together the actual decisions about modifying the commencement provisions of the Bill. It is also intended on Report to put down a consequential Amendment to Clause 28 to achieve the same ends.

As drafted, Clause 156(2), which deals with the commencement of the Bill, provides for Clause 92 (which deals with the removal of goods vehicles under 30 cwt. from carriers' licensing) to come into effect on Royal Assent. That means as soon as the Bill becomes law. The remainder of the Bill, except for four provisions, is to come into effect on days appointed by the Minister by Order. These four provisions—Clauses 28(2), 112, 115 and 127—are to be brought into effect on days appointed by the Minister and the Secretary of State acting jointly, or, in the case of Clause 127, by the Secretary of State alone. Each of these clauses contains a specific provision to this effect. In essence the Government are proposing to make three changes in these arrangements. They concern the identity of the Minister or Ministers who will make commencement orders for the various provisions of the Bill. They will not, however, alter the principle that, with the single exception of Clause 92, the Bill's provisions are to come into effect as a result of orders by Ministers.

The first change concerns Scottish provisions. As a result of Amendments made to the Bill since it was first introduced, there are now three clauses, Clauses 58, 143 and 144, which relate solely to Scotland, and a fourth has been proposed by the Government, which is Amendment No. 314. The Government consider it only right that the commencement order for these clauses should be made by the Secretary of State for Scotland and not by the Minister, which is the effect of the Bill at the moment.

Secondly, there are several provisions of the Bill besides Clauses 112 and 115, whose application in Scotland and Wales will be the responsibility of the Secretary of State, while the Minister will administer them in England. We are therefore proposing that the commencement order for all these provisions should be made jointly by the Minister and the Secretary of State. Thirdly, Clause 28(7) already provides for the appointed day, for the purposes of the transfer of assets, liabilities and securities from the Transport Holding Company and the Railways Board to the Scottish Group under subsection (2) of that clause, to be appointed by the Minister and the Secretary of State for Scotland jointly. But there are, of course, many other provisions in the Bill relating to the Scottish Group, and we are accordingly proposing that the commencement orders for these provisions too are to be made jointly by the Minister and the Secretary of State for Scotland.

We are not proposing any change in the arrangement under which the commencement order for Clause 127 (which concerns fixed penalties for certain driving offences and an extension of the powers of traffic wardens) is to be made by the Secretary of State; that is to say, the arrangements are to be made by the Secretary of State. So the changes proposed in this group of Amendments are really only tidying up changes which nonetheless give proper recognition to the locus, to the position, of the Secretary of State in this Bill. They will not result in any practical changes either in the way in which or the dates on which the Bill's provisions are to be brought into effect, or in their application and administration. But they will have the advantage that, if they are accepted, all the commencement provisions of the Bill will be brought together into a single place in Clause 156, instead of there being references in various other places as well. I beg to move.

9.28 p.m.


I should like to thank the noble Lord, Lord Winterbottom, for that explanation, and apologise to him for not being here at the beginning of it. I must say that I am not clear why Claus, 112(8) was originally in the Bill at all. The main clause concerning the commencement, as the noble Lord explained, is Clause 156(2) as the Bill is drafted at the moment. This says that the various provisions of the Act shall come into force on a day appointed by the Minister, by order, and that these may be different days for different Parts of the Bill. Then, as he explained to us, there are the four clauses of the Bill of which Clause 112(8) is one, which were singled out for special mention. In each of these cases, provision would he brought into effect on a day laid down jointly by the Minister of Transport and the Secretary of State for Scotland. Of course, there were many other provisions in the Bill, as we know having been going through it for these past few weeks, that concerned Scotland, not just the four which are itemised in Clause 156(2). So now we have the Government coming here to propose, in these Amendments, and particularly in Amendments 316 and 316A, to add a new subsection which will itemise all of these clauses. I would not dispute what the noble Lord has said. I think this is a desirable tidying up, but surely it is rather late in the day. These Amendments were tabled last Friday and the Bill was originally introduced in another place in December last. We have already passed Clause 28, the first of the four, so it is now left as a sore thumb, presumably to be severed on Report stage, after we return from the Recess, in order to bring Clause 28 into line with the other Parts of the Bill. So if anyone is inclined to complain about the time taken in your Lordships' House on this Bill it seems to me an ample justification that time is needed on the Government side, as well as on the Opposition side, to give the Bill the examination it did not receive in the House of Commons.


I would not argue with the noble Lord on this point. In fact the whole of Part VIII of this Bill has not been debated in the House of Commons at all, and presumably that is why we must pay more attention to it this evening. I accept the noble Lord's strictures completely but this happens to be the first appropriate moment when these Amendments could be introduced. This particular subsection (8) was a means of recognising some of the Secretary of State's responsibilities under the Bill to Scotland and Wales but it is in fact the wish of the Government to tidy up all these provisions and this is the way we are doing it. It may not be the most satisfactory way, but if the objective is agreed I bore the method will be forgiven.


We were not complaining about the way of doing it: we were merely observing that the Amendment was only put down last Friday, so presumably my noble friend was right when he said that more time was needed on the Government side.

On Question, Amendment agreed to.

On Question, Whether Clause 112, as amended, shall stand part of the Bill?


Before we agree to this clause, I wonder whether the noble Lord, Lord Winterbottom, could answer one question which I think may help us in considering a later Amendment As I understand the position from the Explanatory Memorandum, this clause and the next hang together, and in general terms what they do is to redistribute financial responsibilities in respect of the maintenance and repair and improvement of bridges, over railways and over waterways, as between the Boards and the highway authorities. I wonder whether the noble Lard can tell us why this is being done? Is it that the present arrangements are found to be unsatisfactory, and if so, in what respect?


I am speaking now without precise knowledge but I believe in general there has been dispute between the road authorities and the British Railways Board over a number of years. In fact the figure in my mind is six years, and learned lawyers on either side have in fact been arguing the case, at the public expense and to the profit of the lawyers. I am not speaking against lawyers but I understand this to be the case. I think this is a suitable moment in our legislative programme when this unnecessary dispute can be brought to an end and the responsibilities defined.


Before we leave Clause 112, I was going to make a point or two about this matter on the next clause but since the noble Viscount, Lord Simon, has raised it on this clause, I think perhaps it is more appropriate to say a word here about the way we see the principle underlying this Part of the Bill. The clauses at first sight look relatively uneventful, as in fact does all Part VIII. But when one comes to look closely one sees that under it the very substantial cost of maintaining roads on bridges, where they cross either railways or canals, is transferred from the Railways Board or the Waterways Board to the highway authorities. As the noble Lord, Lord Winterbottom said, this Part of the Bill was guillotined. It has not received any discussion at all, either in Committee or on Report, in another place. although I think there were two Government Amendments to Clauses 117 and 121 which were just accepted without any debate of any sort. We on this side of the House accept the principle behind Part VIII of the Bill, that the Railways Board should be relieved of the cost of maintaining the public highway where it crosses the railway. For too long, since 1947, there has been this absurdity referred to by Lord Winterbottom, where the Transport Commission, and later the Railways Board, have sought, with substantial payments under bridge agreements, as they have been called, to get highway authorities to take over responsibility for maintaining the road over a bridge and its approaches in exactly the same way as the other parts of the road. And the noble Lord, Lord Winterbottom, had a good point when he said that two sets of lawyers have been engaged, at the public expense, in transferring the cost of main- tenance from one grant-aided authority to another. If the Railways Board are to concentrate more on their real task of administering the railways with realistic financial targets, it seems to us that this is a financial obligation which could be removed from them.

Clause 112, as amended, agreed to.

Clause 113 [Duty of Boards as respects bridges carrying highways]:

9.37 p.m.

LORD WINDLESHAM moved Amendment No. 276: Page 150, line 7, at end insert ("and width"),

The noble Lord said: Amendments Nos. 276 to 283 all run together and, with the permission of the Committee, I think it might he convenient if I spoke to them together. The point at issue is the width of bridges. The Bill makes no mention of the width of a bridge; it is concerned with the load-bearing capacity. This is because many of the bridges are old, and the weight that they now have to carry, both in frequency and in weight of individual vehicles, is very much greater than that for which they were originally designed.

The point we should like to put to the Government in this series of Amendments is that when a bridge over a railway is reconstructed it is not sufficient to construct it to an adequate weight capacity if it is still too narrow, as many old bridges are. To farmers, in particular, width is often more important than load-bearing capacity, because many types of modern farm machinery, such as combine harvesters, although not of excessive weight are too wide to get across old bridges. The National Farmers' Union, in representing the interests of its members, has taken up for a great number of years many problems concerning bridges and level crossings. The N.F.U. believes, and has said, that a recognition of width in this clause would be a substantial advantage to the farming community.

I would not rest the case for these Amendments solely on the interests of farmers, important though these are. How often has traffic congestion been caused by a road narrowing down from three lanes of traffic, or perhaps four, to two at a narrow bridge? And the problem here is aggravated by the time scale. Most bridges over railways were built well before the days of heavy road traffic and many of them are now no longer adequate for to-day's changed conditions. If these Amendments were accepted in Clause 113(3), the standards of width which would be applied would be left as a matter of reasonable judgment to the Minister or by reference to traffic normally carried on the bridge. Therefore we are not proposing to try to write any arbitrary standards into the Bill—indeed, 1 think it would be foolish and impossible to try to do so. All that these Amendments would do would be to give in this part of the Bill some statutory recognition to the importance of the width of bridges as well as to their load-bearing capacity. I beg to move.


I should like very strongly to support these Amendments. I have no doubt that the noble Lord, Lord Winterbottom, is well aware of the fact that one may have a long length of very wide and straight road which may be interrupted by just one narrow bridge, and that one narrow bridge can slow up traffic along the entire road. Therefore there is no doubt that if we want to get traffic moving we must remove not merely a few bottlenecks but all of them. In many cases this can be done not by widening the existing bridge but by building another beside it, which can often be done at lesser expense than by widening the existing structure.


I must admit that when I was considering this particular group of Amendments the combine harvester was not the machine that entered into my mind at the time. This is obviously a rather interesting point, and I should like noble Lords to consider this single element further and, if you agree, to perhaps say something about it at a later stage. However, I should here like to talk about the general principle, and; about the differences which arise between the standards of load-bearing capacity on bridges, and the width standards for bridges. The Amendments would, in addition to setting load-bearing standards, require the Boards to improve or alter the width standards of bridges in use at this time.

Noble Lords should not forget that there are a great many bridges about, and the improvements, we believe, would introduce an extremely burdensome obligation on the Boards, and one which would be entirely unrelated to the requirements of rail or waterway traffic. I believe that, due to a rather odd legal ruling about 1916, it was decided that bridges would have to be maintained not at the level of load-bearing which they would have to meet at the time in question but at the level of load-bearing for which they were designed, which could be at a substantial period earlier. Nevertheless, this does not seem to have really hamstrung the whole of the operations because Ministry load-bearing standards on bridges, which are related to permitted axle loadings, have remained unchanged for some thirty years. On the other hand, the width of carriageway required over a bridge depends on the local volume of traffic and is liable to vary from time to time according to developments in the area, road improvement schemes and diversions.

We believe at this stage it would be impossible to lay down a standard width which could be expected to remain unchanged for many years to come, and am sure noble Lords will agree that with a Bill of this size we do not war t this to happen every few years. This standard of width is not one which we could lay down with the same ease that it is possible to lay down a standard loading capacity. As I said earlier, the standards of lead-bearing capacity can be related to the class of road carried. The volume of traffic which determines the width of carriageway required is not necessarily related to the class of road. This is a point I made earlier. To determine standards of width to be prescribed at the appointed day would require a traffic survey of more than 11,000 bridges.

It is implicit in the clause that load-bearing standards can be revised upward following reconstruction or replacement of a bridge. Applied to standards of width, this could involve the Boards in very heavy liabilities indeed. Even if a contribution to the costs of widening were made by the highway authority the Board could still not escape being encumbered with the higher costs of maintaining the wider structure. Bottlenecks caused by narrow bridges can be dangerous, as the noble Lord, Lord Somers. has pointed out, but the danger is not of the same order as the risk of collapse of a bridge due to inadequate bearing strength. Moreover, there is no threat in the first case to rail or waterway traffic beneath.

The Government's whole object, as noble Lords will remember from an earlier stage of the debate, is to ease the burden of the liability of the Railways Board and the Waterways Board and the London Transport Board, for services unconnected with railway and waterway operations. The cost to the Boards of strengthening bridges which are at present substandard in respect of load-bearing capacity has been taken into account in the new financial arrangements dealt with in this Bill. No provision has been made for the cost of widening to present-day requirements or for the liability of maintaining widened bridges, nor is such provision practicable in view of the potential for change in the requirements. If the Amendments were adopted they would place upon the Boards a liability which is unquantifiable; that is to say, a liability for widening 11,000 bridges.

Turning to the bridge-strengthening programme, the Boards have been asked to discuss their proposals for strengthening substandard bridges with local highway authorities so that any proposals of the local highway authorities for widening, re-alignment or other special provision can be incorporated in a Board's scheme where practicable. Any such special work requested by the highway authority will of course have to be paid for by that authority, but in the case of a principal road it will be considered for grant in the usual way.

The bridge programme will be substantially complete before the appointed day for the provisions of this clause to come into force. By that time, therefore, there will have been an opportunity for carrying out any widening or other work which the highway authority considers to be of immediate importance. Because of these circumstances, the Government can see no justification for imposing upon the Boards, whom we are trying to bring into a profitable state of operation, a new, heavy bridge widening commitment.

I accept the point that the combine harvester is a new problem which we have to face. I hope that my answer is satis- factory in regard to vehicles other than this peculiarly bulky piece of equipment. If I can give a more satisfactory answer later on this single element I shall try and do so, but the main argument against these Amendment is that which I have deployed.


Before my noble friend withdraws his Amendment, I think the noble Lord, Lord Winterbottom, mentioned 11,000 bridges. Surely, all these cannot be either on trunk roads or 'A' class roads? Can the noble Lord says what sort of proportion are on main roads?


I am afraid I cannot. I have a figure in my mind, but I would rather write to the noble Lord and give him precise details than mention it now. It is of course every sort of bridge, from the good modern one to the peculiar little hump bridges that we know of over some of the older canals of this country. But there are 11,000 bridges to be considered.


I think we would prefer what the noble Lord himself said to what he read out from the brief. The brief gives all the arguments as to why width should not be brought into the matter, but the noble Lord himself recognised that the excellent example which my noble friend Lord Windlesham, gave, of the combine harvester, is a valid point.

All we are really concerned with is the entirely practical point. If these bridges are being rebuilt and brought up to an adequate standard, the width as well as the load-bearing capacity should be considered. We are not asking that every one of them should he made 60 ft. wide. Naturally, it will depend on the local circumstances, but it seems common sense to take into account width as well as load bearing when they are being rebuilt. Maybe our set of Amendments is too comprehensive, in that it would require the Minister to set up requirements for standards of width as well, but that width should be considered in any rebuildings is just plain common sense. What we should like the Minister to do, in his own words, and in his own thinking, is to say: "Yes, this is common sense. You have a good point here. I will take it back and have a look at it to see what Amendment is needed in order to make sure that width is looked at without tying the Minister's hands". If the Minister would say that, we should be very happy.


I think I can give the commitment that I will look at it again. We have time to consider this, and I hope we can, in fact, say something at Report stage.


We are very grateful for what the noble Lord has said. I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

Clause 113 agreed to.

Clause 114 agreed to.

Clause 115 [Ending of liability of Boards to make payments on being relieved of responsibility for bridges carrying trunk or special roads]:

LORD WINTERBOTTOM: I beg to move Amendment No. 283A:

Amendment moved— Page 155, line 5, leave out subsection (3).—(Lord Winterbottom.)

On Question, Amendment agreed to.

Clause 115, as amended, agreed to.

Clause 116 agreed to.

Clause 117 [Application of foregoing sections to undertakers other than Railways Board, London Board and Waterways Board]:

9.53 p.m.

LORD NUGENT OF GUILDFORD moved Amendment No. 283B: Page 155, line 41, after ("subsidiaries") insert ("river authorities (as defined for the purposes of sections 107 and 109 of this Act) or drainage boards constituted or treated as having been constituted by the Land Drainage Act 1930").

The noble Lord said: I beg to move this Amendment standing in the name of my noble friends and myself, and I suspect that the same point that I wish to develop is going to be dealt with in principle by the noble Viscount, Lord Simon, in his two later Amendments. Clause 117 gives the Minister power to apply the provisions of Clauses 112 and 113 to bridges other than those belonging to British Railways or the Waterways Board. As the clause is now drafted this could include a bridge owned by a river authority or an internal drainage board. These authorities do not own many bridges and usually only for very limited access purposes; but obviously if the Minister made an order requiring that a bridge owned by one of these authorities was to be reconstructed to modern highway standards, the financial implication could be very large indeed and far beyond the resources of such authorities. I should mention that, as the noble Lord, Lord Winterbottom, will know, there are no less than 400 internal drainage boards who are with very limited finances indeed, and they could not possibly be capable of a financing implication of this kind.

I have had the opportunity of discussing the correspondence between the Ministry of Transport and the Association of River Authorities. I understand from that correspondence that it is not the Ministry's intention that Clause 117 should apply to bridges owned by river authorities or internal drainage boards. Evidently the Ministry recognise that it would be inappropriate to apply this clause to such bridges.

The Ministry have suggested that Clause 99 of the Highways Act 1959 would give these authorities a sufficient safeguard, but to this suggestion I must reply that it would still leave the river authorities and internal drainage boards at risk. In theory, the Minister, if he wished, could still make an Order under Clause 117 against a river authority or internal drainage board. Clause 99 of the 1959 Highways Act requires him only to consult the affected river authority or drainage board before making the Order. He can still decide against them if he wants to. Therefore I suggest that, as the Ministry of Transport do not intend to include bridges belonging to these authorities in orders made under Clause 117, it will be far the best course, and in everybody's interest, to amend the clause to say so, so as to give certainty to all concerned. I am sure that this is the right way of doing it. I hope that the noble Lord will accept this Amendment, which I beg to move.


The noble Lord is turning round the argument which I made in favour of not loading the highway authorities or Railways Board with too great a burden of widening a proportion of 11,000 bridges. The widening of bridges is a desirable operation, but an expensive one. In the time which has passed since we started these discussions in another place and our discussions today, a certain sympathy—shall we say?—is developing in the Department of my right honourable friend towards this argument. If noble Lords will agree, I should like to bring to my right honourable friend's notice the points which have been made in this evening's discussion. I will discuss with him the problems and on Report will let your Lordships know with greater clarity the Government's attitude on this point. I can give that undertaking.


I wish to thank the noble Lord for that undertaking. I hope he understands the implication that something is needed here. There has not been opportunity to discuss this clause before, since it fell under the guillotine, and therefore the point has not been examined. Now that it has been examined I am most grateful to the noble Lord for looking at it with his customary sympathy. I am sure that that will be fruitful. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.58 p.m.

VISCOUNT SIMON moved Amendment No. 283C: Page 155, line 41, after ("subsidiaries") insert ("or dock undertakers, harbour undertakers or canal undertakers (as defined in section 295 of the Highways Act 1959)").

The noble Viscount said: I do not know whether the noble Lord's sympathy is also going to extend to dock and canal undertakings, but there is a particular point on this Amendment to which I call the Committee's attention. It may well be that, as a result of correspondence, the river authorities and drainage boards have been advised that they are not affected by this clause, but I do not think that that applies to dock and harbour authorities and canal authorities. The position of the dock authorities is rather different from the position of the river authorities.

The present situation is governed, as the noble Lord, Lord Nugent has said, by Section 99 of the Highways Act, under which certain orders can be made. The 11th Schedule to that Act, "Provisions as to Orders under Section 99", lays down clearly the orders which can be made and the limitations which can be placed upon them. I do not know whether the noble Lord has been fortunate enough to obtain a copy of the Highways Act. It is even longer than the Transport Bill and has 299 pages. Paragraph 15 of Schedule 11 on page 477 provides that Where an Order has been made with respect to a bridge (i) where the bridge is a bridge crossing a railway or railway undertakers "— this also applies to the Railways Board at present, although the position will be altered by Clause 113— or a canal of canal undertakers, or a railway, lock, passage or other work of dock undertakers … any additional expense incurred by the owners … by reason of any alteration thereof due to the provisions of the order (not being provisions applied for by the undertakers for the improvement of their undertaking) shall be defrayed by one or more of the highway authorities". So, in brief, the position is that in the case of the dock undertakers they have a statutory protection. They pay for the maintenance of the bridge, but if the highway authorities want a stronger or wider bridge—to take up the point of the noble Lord, Lord Windlesham—then the highway authorities have to pay for it and not the dock undertakers. It has no benefit to the dock undertaker that the bridge over his dock is strengthened.

I was surprised when the noble Lord, Lord Windlesham, said he thought the bargain in Clauses 112 and 113 was favourable to the railways. I think it is extremely unfavourable. What is done under this Bill is to transfer to the highway authorities the cost of repairing the surface of the road, which is a comparatively small matter, and to place upon the railways the cost of reconstructing a bridge to a new requirement of a load-bearing capacity which the Minister may lay down. That seems most unfavourable to the railways. They may have entered into this as a bargain which they think is a good one, but I do not think the dock undertakers would think it a bargain and they would prefer to remain as they are at present, governed by the 1959 Act. I beg to move.


Although I am in sympathy with the point made by the noble Viscount, I want to say straight away that it would not be possible to accept an Amendment which would automatically place on the highway authority the costs of strengthening or reconstructing and of maintaining the bridge to higher standards. The merits of whether the highway authority or the bridge owner should bear the additional cost arising from the growth of road traffic can be debated endlessly, and that is not something which we wish to do to-night. It is partly a question of whether the railway or waterway interfered with the road, or vice versa. What we have done in this Bill, in the case of bridges owned by the three Boards, is to place certain obligations on the highway authority by Clauses 112 and 114, and certain obligations on the Boards by Clause 113. We cannot risk upsetting the balance of these provisions by a one-sided provision in favour of other private bridge owners.

In my notes on this Bill there is a point which I thought the noble Viscount might have raised, and that is the special position of the Manchester Ship Canal. It may be of interest to the House, since we are putting a great many cases on record this evening. In the absence of any procedure whereby the highway authority can take over the bridges, the Minister should have a reserve power to insist on load-bearing capacity adequate for modern traffic. My right honourable friend is willing to examine with the company and the highway authorities the reasons for the exemption from Sections 99 and 100 of the Highways Act 1959 of bridges owned by the company, and to consider whether this exemption should be repealed. This, again, is a question of looking at a special case with reasonable sympathy.

I think this is also true of bridges maintained by charitable trusts. There are comparatively few such bridges, and where funds have become inadequate for proper maintenance, or where it is considered that funds should be devoted to some other charitable purpose, it is usual for the highway authority to take over these bridges maintained by charitable trusts. I do not know whether this reply satisfies the noble Viscount, but we are trying to be helpful on this point, and we will look at what he has to say when we come to consider the Bill at Report stage.


I do not think we want to go into this question of the savings to the Railways Board under these clauses of the Bill, but if the noble Viscount would look at the Whitt Paper, Railway Policy, he will see that Section 5.38 sets out the considerations which are involved. That perhaps is a point for later on and not for now.

10.7 p.m.


I am much obliged to the noble Lord, Lord Windlesham, and to the noble Lord, Lord Winterbottom, for his sympathetic answer, although I must say 1. was not very satisfied by it. It seems to me that dock and canal authorities have a position now which it is proposed to alter. I particularly asked the noble Lord earlier what was tie purpose of Clauses 112 and 113, and I understood that it was in order to solve some long-standing problems of litigation. That is between the persons concerned, and they may have thought it was right to settle their litigation by getting an agreement of this kind, hut so far as I know there has been no litigation in regard to bridges over docks.

Some very large figures are involved here. I think of a bridge which runs over the whole of the western end of the Victoria Dock and carries the Silvertown Way down to Silvertown. Suppose the Minister decided, now that we are talking about having much larger containers going through the country, that he wanted to have a greater weight-load on that bridge. It would cost well over £1 million, I am sure, to reconstruct it. I should have thought that if the highway authority wanted to have a stronger bridge it was they and the users of the highway who should pay for it, rather than the people over whose property it happens to pass. But the noble Lord has said that he will look at the matter between now and Report stage.

May I add just one thing? My friends in the Dock and Harbour Authorities Association have felt a little hurt that they were not consulted about this matter at all. No doubt there were consultations with the Boards, but there were no consultations with the dock and harbour authorities about this matter; they just found it in the Bill. But if we can have a talk about it later on, I am quite content to withdraw the Amendment.


As we have all noted, this is the first discussion we have had on a Committee stage of the various problems arising from this clause of the Bill. The noble Viscount's comments are of great value to myself and my right honourable friend. We can only note them and see whether we can bring them into a proper framework when we come to produce the Bill in its final form.

Amendment, by leave, withdrawn.

Clause 117 agreed to.

Clause 118 agreed to.

10.17 p.m.

Clause 119 [Power of highway and other authorities to contribute to cost of barriers, etc., at level crossings]:

LORD WINDLESHAM moved Amendment No. 284: Page 157, line 10, after ("signs") insert ("cattle grids").

The noble Lord said: Amendments Nos. 284 and 285 go together. These Amendments seek to widen the discretionary powers of the Minister relating to level crossings, which are contained in Clauses 119 and 120 of the Bill. In these clauses the Minister may by order require the Railways Board to provide and operate lifting and other types of barrier, lights, signs and other devices and appliances at level crossings with roads other than public carriage roads. That is in Clause 120; while Clause 119 empowers the highway and other local authorities to contribute to the expenses of the Railways Board in providing such equipment on public roads. It is that clause which my noble friend Lord Ilford will be debating further in the next Amendment.

These two Amendments of my noble friend and myself (Nos. 284 and 285) would add cattle grids to the list of safety devices which, in appropriate circumstances, either the Railways Board or the Minister might consider desirable to install at level crossings. It seems to me that the case for adding cattle grids is a strong one. In the past, local authorities have sometimes claimed in response to local pressure that there is no legal recognition of the desirability of cattle grids at certain level crossings, and they have no grounds to insist on their provision. There is an increasing trend towards the installation of the automatic half barrier—and this is something Lo which we shall return on Amendment No. 286. This equipment is generally proposed by the Railways Board for crossings with rural roads.

Sometimes it is the case that the public road level crossing, where it is proposed to replace the old gates with an attendant, serves also as a farm accommodation crossing for joining up holdings originally severed when the railways were first constructed. In consequence, it is not unusual in country areas for a public road crossing to be used regularly for the passage of cattle 'on the hoof'—not being a countryman myself I am told this is the correct expression. In the absence of gates, the control of the herd obviously becomes more difficult and there is the Danger that some animals may gain access to the track via the unguarded section of road. Where the movement of cattle is regular—and this applies particularly to dairy herds there is no doubt that safety measures must be considered, both in the interests of the animals, and indeed of the passengers on the railway whose lives and safety may be endangered.

To press for the retention of manned crossings with the traditional type of gates across the full width of the road would be, in my view, a retrograde step. It would do nothing to assist in the promotion of greater operating efficiency by British Railways. None the less, I think we can agree that there is a real problem here. Without being dogmatic it would seem, on preliminary inquiry—for this is, as the noble Lord has said, the first time that anyone has discussed this part of the Bill—that the best solution would be to encourage the installation of cattle grids as and where necessary.

Here again, as in the previous Amendment, our Amendments would n of be binding, they would not seek to set any absolute standard in the Bill. No one would be forced to provide cattle grids at all railway level crossings. Far from it. All that these Amendments would do would be to recognise in the Bill that cattle grids are worth considering by the Railways Board, and by the highway authorities or appropriate authorities, when plans are made for the provision of automatic half-barrier equipment in country areas. I beg to move.


I think the noble Lord has again produced a valid point, but one that had not been overlooked by the drafters of the Bill. It is not the question of a herd of beasts being driven across a railway crossing that is the problem. You could not drive a herd across a railway crossing of this sort if there were a cattle grid there: the animals would have to be driven across through a special gate- way at a special point. The problem is caused by animals which could stray down the road and come to a barrier crossing and then get on to the line because there would be nothing to stop them, as there is at the moment with the full gate across the road.

We accept that this is the problem, but we believe that this addition is unnecessary, because in our view provision of cattle grids would be covered by the existing wording in Clauses 119 and 120: … lifting or other barriers, lights, signs, or other devices or appliances for the protection or convenience of the public at or near any level crossing … Here we come to the standard problem with which we are always faced: that if we start to spell out things in too much detail we may automatically exclude other things that are equally desirable. if we tried to spell out in detail all the possible devices or appliances which may be required in future it might have a retrograde effect, since the impression would be given that anything not specifically mentioned did not fall within the scope of these two clauses. I can give the noble Lord an assurance that cattle grids would be included within this particular definition in the Bill. If he feels that this is insufficient I can look at it—it is not a matter of deep importance—when we come to the Report stage.

10.17 p.m.


These provisions concern not only straying animals but also driven animals, the dairy herd moving across to its grazing. For that, of course, as my noble friend has said, having fixed the cattle grid in the road, it would be necessary to have a fixed gate alongside, and the animals would be driven through that gateway after the train had passed. Here there is the double problem. Subject to what my noble friend says, I think that we should like to see some provision here, because experience has taught the Farmers' Union that in negotiations with the railways almost invariably the railways plead that they cannot afford additional money for these purposes; quite rightly, they are careful, knowing that they have to go to the Ministry of Transport for their money. We feel, how- ever, that we should like to see this provision in the Bill, with appropriate safeguards, to make sure that the railways know that they are authorised to spend the additional money on this in appropriate cases.


May I say two sentences in support of what has been said by my noble friends on the Front Bench? I wish to refer to something which has been in the minds of us all particularly in the last few months, and which, in another capacity, concerned my noble friend Lord Nugent of Guildford. I refer to foot-and-mouth disease. I should not like the remarks of the noble Lord, Lord Winterbottom, about its not really affecting driven cattle to be considered as a point about this Amendment. A large number of farmers split up their cattle and their pigs because of the foot-and-mouth disease. If this dreadful disease strikes, and if a herd is split between two farms, it may be that the farmer can avoid the consequences of wholesale slaughter. If a farmer splits his herd, not infrequently some of the animals have to be driven across a level crossing.


I think that a point has emerged from the discussion and I will see what we can do about it. It is obvious that if you have a cattle grid and a half barrier crossing you must have a means of getting a herd across the railway line. We had better have a look at this point.


On this side of the House we appreciate what the nobel Lord has said. On an earlier Amendment he undertook to look into the question of agricultural farm machinery. Although this Amendment concerns a different problem it does also affect the N.F.U. and the farming community as a whole. It might be worth looking at both together, to see how this Part of the Bill impinges on the interests of farmers.

If I may say so, I think the official line of reasoning that the noble Lord advanced, namely that to include mention of cattle grids in Clause 120 would make it harder to install those forms of safety device which were not listed, does not really hold up, because Clause 120(1)(a) itemises, lifting or other barriers, lights, signs or other devices or appliances". Our Amendment still leaves all those in. We merely add a fifth to the four already listed. However, I appreciate what the noble Lord has said about looking at these points, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 119 shall stand part of the Bill?


Unlike certain earlier occasions in this Bill in which the local authorities sought powers that they considered necessary, and did not as a rule get them, this clause thrusts upon local authorities powers which they are unwilling to accept. The clause provides that the local authorities may make contributions to the expenses incurred in providing lifting or other harriers, lights, signs, or other deices or appliances for the protection or convenience of the public.… The local authorities take the view that the Railways Board ought to pay for their own undertaking and that local authorities ought not to be invited to contribute to the costs of any part of the railway undertaking. They see no reason why they should, and there are many reasons why the railways ought to bear their own burdens.

I would draw the attention of your Lordships to die definition of these various appliances. They are defined as being "appliances for the protection … of the public". If these appliances are necessary for the protection of the public, then the railway undertaking ought to provide them, and ought not try to get a contribution out of the local authorities. It is not right that the expenditure should be taken off these national undertakings and put upon the local authorities. That is what will happen. Rates are a regressive tax, and if the choice is between the rates and some other sort of revenue, the burden ought not to be put upon the rates.

The clause puss no obligation upon the local authorities to make a contribution, but simply gives the power to do so. No doubt it will be said that if they do not want to do it they need not and nobody can make them. But that is not how things work out. One knows what happens. Great pressure is put upon the local authority. Somebody goes to the railway undertaking and says: "We ought to have a level crossing, or signs, or we ought to have something that we have not got for the protection of the public". The railways then say: "Go and see whether the local authority will contribute to it". At once pressure is placed upon the local council to pay up and fill the gap which the railways have refused to fill.

That is the objection to the clause. It is not an answer to say that the local authorities have the choice whether to make a contribution or not. So far as these appliances are concerned, of course the local authorities will welcome them if they are necessary for the protection of the public. No doubt these cattle grids, of which my noble friend was speaking a moment ago and of which I regret to say my knowledge is practically nil, are very desirable on the level crossings in the country. But there really is no reason why the local authority should pay for them. They ought to be paid for by the Railways Board. I hope that your Lordships will follow that course and agree that the local authorities should not be presented with this alternative of paying or not paying. I beg to move.

10.26 p.m.


I think that the noble Lord is really envisaging an ideal world where there is no conflict of interests, or where every conflict can be adjudicated by a Bill passed through the Houses of Parliament, but unfortunately that is not the case. I think it is impossible in a Bill to define every situation that can arise. Quite rightly, the noble Lord has pointed out that no one is imposing on the local authorities a duty to provide the type of crossing or facility mentioned. The power is entirely permissive. But, quite clearly—the noble Lord has said it, and we agree with it—there will be cases where a highway authority would welcome automatic half barriers to speed the flow of road traffic, or where a local authority wished to secure the provision of some additional facility at a level crossing but where, in the normal course of events, there would not be a sufficient financial incentive to the British Railways Board to give the scheme high priority. This is the conflict of interest. In such a case the local authority would argue that a half barrier crossing would be valuable and British Railways Board say that the traffic was not sufficient to justify it.


I should like to interrupt. These are appliances which are defined as being for the protction of the public—something the railways authority ought to provide.


Yes; I think I said something like, "a half barrier or the provision of some additional facility at a level crossing". I do not know what that additional facility might be. It might be the cattle grid that we were discussing; it might be a set of lights; it might be some warning system other than a half barrier crossing; it might be something that would warn the public that a train was coming or that they should pay attention to something that was happening. There could at any rate be a difference of opinion between the Railways Board and the local authority as to whether or not this facility was needed. If the Railways Board were not convinced by the local authority's argument, then the local authority would be in a position under this clause, if they so wished, to install that facility through making a contribution towards it.

It may be argued that the railways should make this provision on every occasion; but people can be pernickety and difficult. Mothers may be a little unreasonable. There can be situations where people are unnecessarily frightened of something, and where reasonable men on the Railways Board would say "No; really, this is not necessary". Then, if the local authority come under pressure from the people living within their area, their voters, they might decide that it would be worth while to install the facility themselves. Let us use the word "facility" rather than "half barrier", or some such specific piece of equipment. This Bill simply gives the local authority power to contribute towards its installation.

There is another factor. It is already possible for local authorities in England and Wales, under general powers in existing legislation, to make such contributions, but these powers are not altogether free from doubt. That is the first point. It is therefore felt desirable to spell out clearly in the Bill the right of highway local authorities to contribute in this way on an entirely voluntary basis. There is an important second point. Scottish local authorities do not have these same general powers as their English or Welsh counterparts, so the specific power is needed for them. Moreover, it is not clearly provided that the Minister of Transport and the Secretaries of State for Scotland and Wales in their capacities as highway authorities for trunk roads may contribute in similar circumstances.

As I am reminded, the clause refers not only to protection but also to convenience. This is another factor. There are many things which one would like to have installed. They are not necessary for protection, but it is convenient for one to know through them that something is happening at a certain time, or to be warned that something is happening. So I do not think that this Bill bulldozes the local authorities into anything, but at least it protects the railway authority from having to carry into effect every request made to it by the local authority who might be influenced by a pressure group which however small, might be extremely vocal.


I think the question arises as to whether the local authority is not qualified to put up level crossing gates and things like that. One has to remember that these gates are connected electrically to the signal box, they are operated by the signalman and they are wholly railway apparatus; and I do not think a local authority would necessarily have the engineering qualifications to put them in.


I do not think the point is that they would be required to put them in. They might wish to specify certain facilities which the Railways Board themselves did not think justified to install. In that case, they would ask the Railways Board to provide these facilities, but they would have to pay for them. That is part of the business of taking off the Railways Board the load which they inherited from the days when they were the monopoly common carrier of the country. The question is one of an unreasonable demand on the railways which may seem reasonable to a local authority. If the two cannot agree, and if the local authority feel strongly on the subject they are in a position to ask for facilities to be installed and to contribute towards them themselves.


The noble Lord has not convinced me. I certainly think we ought not to take the load off the Railways Board and put it on the rates. I apprehend that I shall not get much further and, in those circumstances, I ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 119 agreed to.

Clause 120 [Board's obligations at level crossings with roads other than public carriage roads]:

10.32 p.m.

LORD WINDLESHAM moved Amendment No. 286: Page 157, line 30, after ("protection") insert ("safety")

The noble Lord said: This is a probing Amendment, and it might be as well to get that clearly established at the start. It is concerned with the subject of safety at those points where the public cross the railway track. Perhaps I could pick up one or two of the strands of the discussion on the previous Amendment, because it seems that there is a need to look at the word "protection". The Bill has two stated criteria, convenience and protection; it does not mention safety as such. Clause 120 concerns the Board's obligations at level crossings with roads other than public carriage roads. Nevertheless, where these roads are concerned these two criteria, protection and convenience, are the only ones mentioned. After the recent Hixon accident, in which 11 people lost their lives, the question of safety at road crossings, particularly those with unattended automatic half-barriers, has caused considerable public disquiet. Although the main problems occur at public road crossings, the dangers of accident at unattended crossings, with roads other than public carriage roads, should not be overlooked.

The average cost of installing a half-barrier is £7,850, and the annual saving in withdrawing staff varies from £900 to £3,500 per crossing. So this is clearly a device which has to be encouraged, not only because it is more economic but because it helps the British Railways Board towards a more efficient use of manpower. On the other hand, the safety factor calls for study and attention which, as a result of the Hixon disaster, it is now receiving. In particular the question of timing needs to be raised. The point has already been made that this part of the Bill, concerned with bridge, level crossings and related points, has not been discussed at all in either House. Therefore, late though it is, I think it it legitimate to raise this matter, because of our concern with safety.

There is a minimum time of 24 seconds at an unattended crossing from first red light flashing to the arrival of a train. Leaving the heavily laden truck an one side, a family car which stalls on, or partly on, a crossing, with adults in the front (wearing seat belts) and children who need to be assisted out of the back seats, would be in grave danger. If they are in grave danger so, of course, are the passengers in the train. It is said by the Ministry of Transport that if the time is lengthened, motorists might ignore the warning light and go round the lowered barrier (as it is possible for them to do). But the disincentive provided by disasters like Hixon, and the publicity that has been given to the dangers involved, give grounds for thinking that the time-cycle should be lengthened. And lengthened now, because inevitably the Inquiry into the Hixon disaster must take time to consider the evidence and to report. Throughout this time we are still stuck with the interval of only 24 seconds.

I am absolutely convinced that 24 seconds is too short a time. I am in favour of the half-crossing, but I am sure the time-cycle should be lengthened. I am also informed that there is the possibility of devices which would detect the presence of road vehicles immobilised on the crossing. This Amendment seeks to acknowledge the paramount interests of safety in the Bill, and believes that a specific mention, along with convenience and protection, or perhaps instead of protection, would be appropriate. I beg to move.


The noble Lord has raised two separate points, the one about the Hixon Inquiry, and the point of the actual Amendment which he has introduced. The findings of the Hixon Inquiry will be made public very soon, certainly before the House rises, and it might be wise for the House to wait until such time as the findings are made public before it passes judgment on the actual time-scale necessary between the coming down of the barrier and the passage of the train. This is obviously a subject which must be considered carefully by the gentlemen concerned. I believe Mr. Brian Gibbens, Q.C., was in charge of the Inquiry, and I hope we shall get an answer which we can consider when the findings are made public.

As regards the question of safety, the Government accept entirely that many of these private crossings carry a substantial amount of traffic. I am basically a countryman, unlike the noble Lord, and I know a number of cases where a comparatively remote village requires the crossing of a railway line before one comes to a main road; and because the country districts are relatively prosperous a fairly substantial number of cars and agricultural machines and animals have to use the crossing. But we believe that the Minister, who has power to make regulations to cover a situation such as this, will do so as he considers necessary or desirable for the protection or convenience of the public.

I find it difficult to separate the words "protection" and "safety"; I thought they were two sides of the same coin: that if you were properly protected you were safe. That is the view with which we regard this particular Amendment. Obviously the safety of the public is paramount, and we believe the wording of the Bill is adequate to ensure it.


I would support the noble Lord. Of course "protection" and "safety" are exactly the same in the English language. If you protect someone you make him safe. I cannot see that there is any difference at all in these words.


There is a distinction. "Protection" can refer to property for example; you can protect property interests as well as the person. "Safety" can refer only to the individual. That is an immediate distinction that occurs to me, and people in the Department can, I am sure, think of many more. It may be that this form of words has been carefully considered. It may be, on the other hand, that it has not been considered at all. This is an original piece of drafting, not yet revised in any way. The noble Lord has been kind enough to say that he is going to take a look at a number of these points, and perhaps he could look at this. I think the word "safety" says a little more precisely what is meant than the word "protection". With regard to Hixon, I am delighted to hear that the report of the Committee of Inquiry is expected in the next couple of weeks. If that is so we should certainly wait for it. I had feared, since the accident occurred only in February, that it might be some months yet before publication. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

10.42 p.m.

LORD WINDLESHAM moved Amendment No. 287: Page 157, line 31, at end insert ("including the owner and occupier of the land for which the crossing is maintained").

The noble Lord said: This Amendment, which is the last on Part VIII, seeks to widen Clause 120 so that its provisions apply not only to the public, but also to the protection—or safety —whichever word we use, or convenience of the owner or occupier of the land for which the crossing is maintained. It is my understanding that in this clause the Government intend to deal only with those accommodation or occupation level crossings which over the years have come to be used by the general public. Some will be bridleways and other rights of way. Others will have resulted from a change of user, where, for example, farm land has been developed as a caravan site or a housing estate. If the site is one side of the railway line and the public house the other, what previously has been a private farm accommodation crossing will inevitably become much more widely used and will call for more rigorous supervision as a result.

It seems that the provisions in Clause 120 are sensible as far as they go, but the question arises what happens when the crossing remains essentially one that is there for the convenience of the owner or occupier of the adjacent land? It is worth just pausing on this point, because the mere fact that there is a crossing at all, and a form of gate, means that the occupier, or his predecessor when the railway line was first built, has some rights. Therefore what ought to be considered is, should not the right of passage across the track—the fact that a crossing exists indicates that there is a right of passage—be a right of safe passage, even if only to the extent of the "convenience" and "protection" set out in Clause 120(1)?

New dangers have been brought about by technological advances for the private user of land adjacent to the railway line. British Railways have introduced comparatively noiseless but faster diesel and electric locomotives. They arrive more quickly, and they arrive unannounced. At the same time, farmers have been replacing silent horses with comparatively noisy tractors and other mechanical equipment. So these two factors can combine to introduce new hazards which were not thought of, or known of, when the railways were first developed and the crossings agreed.

In places there is a case for the installation of safety precautions, perhaps on a shared cost basis between the Railways Board and the owner or occupier of the adjacent land. I believe that the present practice of the Railways Board is that all costs must be carried by the owner or occupier of the land. The Ministry of Agriculture have agreed, and the Agriculture Act 1967 allows, that any money paid by a farmer for safety precaution equipment may qualify for grant. So here is a recognition of a public right in a Statute saying that expenditure by the farmer can qualify for assistance from public sources. But in view of the high cost of telephone equipment and miniature warning lights and so on, this leaves the farmer with the prospect of a higher expenditure than he can usually afford.

So once again we propose one of our moderate Amendments, the last on this Part of the Bill. It only envisages a discretionary power which the Minister can use or not as he thinks fit. It would increase to a small extent the financial burden on the Board, and it should be put forward only on the basis of shared costs and not that all costs should be carried by the Railways Board alone. I beg to move.


The noble Lord has agreed with the general intentions of Clause 120, and has indeed welcomed them. But I think he is considering a slightly different situation. He is, I think, considering, first of all, a simple farm crossing which is used by the farmer himself, presumably to move his own farm equipment or his livestock across the railway line. But it is still entirely private; nobody else uses it except that farmer. It is the Government's view that where the crossing is used to this limited degree the Railways Board should not be made liable for this additional obligation; and we think it should still be, as it is is now, that the landowner should come to a mutually agreeable financial understanding with the railways for the provision of whatever additional safeguards he wants: that is to say, if he has a particularly loud tractor and the railway uses particularly quiet trains, then he may do a deal for some sort of warning light system and pay on the basis of 50–50. Presumably, the railways are as anxious not to hit his tractor as he is anxious not to be hit by the train. There is a mutual interest here.

The noble Lord made another point which I think is a conceivable situation. A caravan site is developed on a piece of farmland and individuals cross the railway in order to refresh themselves in the evening after a hard day's work in the open air. That being so, and if sufficient individuals were concerned, then I should have thought the local authority would advise the Minister on the necessary action to take. It is a question of judgment, and one hopes (I think it is a fair hope) that in most cases common sense will be applied. If a crossing starts to be used by more people other than the farmer and his staff and his livestock, then of course the crossing becomes a matter of public interest and the local authority, the railway authority and the Minister must be concerned with the matter.

I am afraid I cannot give the noble Lord more hope than that. It depends entirely on circumstances. The powers are there if they have to be used, but we do not believe that they should be over-used to provide expensive facilities where a crossing is used by a farmer purely for his own ends.

10.50 p.m.


The noble Lord makes it all sound most reasonable. His second group in fact is covered under the Bill as it stands. It is the purpose, as I read it, of Clause 120(1)(a) to provide specifically this sort of protection at a private crossing where the public are involved. So that is all right, the Bill already caters for this category. The question of the farmer and others concerned with the land adjacent to the line, the first example the noble Lord gave in reply, is really a matter of practice. The noble Lord mentioned an instance of farm machinery and a fast, silent train.

I think he used the words "A mutually agreeable financial understanding might be reached with the Railways" and costs split on a 50–50 basis. All I can say is that my information is that this is usually not so. I cannot speak from first hand experience, but when he is consulting, as no doubt he will, with representatives of the farming community, this is a point he ought to take up with them. I have correspondence which says that, except in rare circumstances, this is not so, that the farmer has to bear the whole cost himself, although he can get a grant under the Agriculture Act 1967. May I just leave that thought with the noble Lord and withdraw this Amendment?

Amendment, by leave, withdrawn.

Clause 120 agreed to.

Clause 121 agreed to.

Clause 122 [Amendment of provisions as to regulation of traffic]:

10.52 p.m.

LORD MERRIVALE moved Amendment No. 287A:

Page 160, line 39, at end insert— ("( ) for the words in no circumstances' there shall be substituted 'not necessarily';")

The noble Lord said: I beg to move Amendment No. 287A standing in my name on the Marshalled List. The purpose of this Amendment is to remove what I feel to be a psychological inducement for local authorities to make severe restriction orders in respect of loading and unloading without paying proper regard to all the relevant circumstances, which could lead to severe curtailment of vehicular access to premises. Subsection (5) of Section 1 of the Road Traffic Regulation Act 1967 reads as follows: Subject to subsection (6) below and Section 5 of this Act, no Order shall be made under this section with respect to any road which would have the effect of preventing such access as may be reasonably required for vehicles of any class to any premises situated on or adjacent to the road, or any other premises accessible for vehicles of that class from, and only from, the road; The section goes on to say: but for the purposes of this prohibition a restriction on the loading or unloading of goods shall in no circumstances be treated as preventing such access as may be reasonably required. The object of this Amendment is to substitute for the words in the Act "shall in no circumstances" the words "shall not necessarily", so that a restriction relating only to the loading and unloading of goods should not necessarily be treated as preventing access. As the Bill is drafted, a safeguard is removed—that is, the safeguard which prevents a denial of such access as is reasonably required by vehicles—and in its place has been inserted a proviso whereby access by vehicles shall not be denied for more than eight hours in every 24 hours. With a view, therefore, to ensuring that restriction orders with regard to loading and unloading of goods will not be unduly severe or will not unduly curtail access by vehicles to premises, I beg to move.


This Amendment seeks to alter the wording of the concluding part of subsection (5) of Section 1 of the Road Traffic Regulation Act 1967 which at present reads: but for the purposes of this prohibition a restriction relating only to the loading or unloading of goods shall in no circumstances be treated as preventing access. If amended, as the noble Lord proposes, this part of subsection (5) would read: but for the purposes of this prohibition a restriction relating only to the loading or unloading of goods shall not necessarily be treated as preventing access. Subsection (5) of Section 1 prohibits in certain circumstances the making of traffic regulation orders which interfere with vehicle access to premises, but it declares that for the purposes of this prohibition a restriction on the loading and unloading of goods is in no circumstances to be treated as preventing access. This is the present position, and it will also be the position if Section 1(5) is amended as proposed in Clause 122 of the Bill. If this Amendment is accepted, however, the present position will be changed.

The present status of orders restricting loading and unloading of goods will be altered and, instead of the present rule that these orders are in no circumstances to be treated as preventing access to premises, the Amendment will substitute a rule that these orders are not necessarily to be treated as preventing access to premises. I hope that what I have had to say to the noble Lord he will agree is a sufficient answer to his Amendment.


I have not the slightest idea what the noble Lord was trying to say to me. Perhaps he has not the slightest idea of what I was trying to say either. From what he has said I have not gathered whether he was accepting my Amendment or what were the grounds for not accepting it. If he was not accepting it, I must say that I am uncertain as to the reasons, and I am completely in the dark as to why his form of words is better than mine, or why he feels that mine are not better than his. Perhaps he could explain why he feels his words are better than mine.


We want to have a degree of certainty which would not be there in words like "not necessarily", as the noble Lord suggests. That kind of phrase in traffic regulations is very difficult for local authorities and others, including the courts, to interpret. We want definite things and the noble Lord wants to have a certain amount of freedom—




The Government's aim is for certainty in the regulations in regard to access and non-access to these roads. I am sorry, but I should have said that I cannot accept the Amendment.


I am Crateful to the noble Lord for clarifying the point. The noble Lord in this respect des not want flexibility. Although over the last few days the Government have stressed that there is flexibility in the Bill in this specific instance flexibility is not required. At this late hour, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD MERRIVALE moved Amendment No. 287B:

Page 161, line 12, at end insert— ("( ) Where an order under subsection (5) or (6) of the said section 1 would otherwise prevent the usage of off-street areas used for delivery and collection of goods, servicing, garaging, parking or any other necessary purpose, suitable provision should be made—

  1. (a) to provide reasonable alternatives, or
  2. (b) to provide for controlled passage by vehicles to the off-street areas.")

The noble Lord said: The object of this Amendment is to ensure that when local authorities make use of the power to make regulations which will close streets and prohibit access to premises for periods of up to eight hours, there shall be a clear onus upon local authorities to ensure alternative means of access, or to provide that other suitable arrangements are made. Under the existing provisions of subsection (5) of Section 1 of the 1967 Road Traffic Regulation Act, an order cannot be made except under the provisions of subsection (6), which would have the effect of preventing such access as may be reasonably required for vehicles of any class to premises in or adjacent to the road, or on any other premises accessible for vehicles of that class from—and only from—the road.

As the Bill stands, access can be denied for eight hours, or more with the Minister's approval, and this could be most detrimental in the case of the essential delivery and collection of goods—for example, to meet certain deadlines at ports, production schedules and so on, as well as in the case of certain perishables. It is essential that there should be reasonable access to premises and that this should be preserved, and it is only right that the servicing of these premises should always he able to be carried out expeditiously. I beg to move.

11.2 p.m.


I am afraid that, again, I cannot accept the noble Lord's Amendment, but I shall explain the provisions of the subsections of Section 1 of the Road Traffic Regulation Act referred to in this Amendment, as they refer to vehicles. Subsection (5), as amended by the Bill, states that traffic regulation orders shall not be made which would have the effect of preventing access to premises by vehicle for more than eight hours in a day. Subsection (6) qualifies this by providing that where there is, or is likely to be, danger to persons or to other traffic the eight hour limitation on denial of access shall not apply. Subsection (6) also waives this limitation where orders are made for preventing damage to the road or buildings on or near it.

The Amendment itself is undesirable as it imposes unnecessary conditions on a local authority when making traffic regulation orders. In particular, it introduces the question of what "reasonable alternatives" might be. This is vague, and it has been found by experience that vagueness in traffic regulation has a stultifying effect on the use by local authorities of their traffic regulatory powers. It is for this reason that the Government wish to introduce a precise definition of what constitutes a denial of access. There could be endless argument over what constitutes a "reasonable alternative" and the validity of traffic regulation orders could be called into question. Second, it is unnecessary to introduce a provision which would allow for the controlled passage of vehicles to off-street areas, since Section 1(3) of the Road Traffic Regulation Act already provides that exemptions can be made in traffic orders.

The Government are keen that local authorities should have wide scope in the use of their traffic powers. We intend that traffic regulation orders should in future be able to be made not only to prevent danger but also in anticipation of its arising; also, that orders may be made to improve conditions, especially in shopping streets, by relieving the conflict between pedestrians and vehicles. At the same time, we realise the need for proper access to premises. The Transport Bill will therefore introduce in Section 84 of the Road Traffic Regulation Act a duty on local authorities to have regard to the need to secure and maintain reasonable access to premises. This simple provision keeps Statute Law simple and flexible, but local authorities will need advice on what is intended. The Ministry of Transport is already preparing a manual of guidance on the use of the new traffic powers, which will be issued at the time the new procedure regulations are made—about the turn of the year. The manual will stress the importance of the need for adequate access. It will point out that streets should be banned to traffic only where arrangements can be made for the collection and delivery of goods. This may be, for example, by delivering through alternative accesses, or at different times of the day, or by making use of new or alternative means, for example, trolleys. It is not our intention that streets should be closed where access to parking or garaging would be seniously denied. These matters, of course, apply mainly to pedestrian precincts—where danger is involved restrictions may have to be more stringent as safety must be paramount.

This Amendment is identical to one tabled by the Opposition in Committee in the Commons. That Amendment was considered with a number of related Amendments which were negatived without a Division. My honourable friend the Minister of State opposed the Amendments on the ground that advice will he given to local authorities on the importance of the need for access in the manual of guidance which the Ministry is preparing for local authorities on the exercise of their new traffic regulation powers. But he said that in the light of the uncertainty which Mr. Heseltine, for the Opposition, had felt as to whether reasonable access to premises would be allowed, he would see whether a further statement could be made on Report or Third Reading about the type of guidance to be given and about the concept of the exercise of these powers. There was no further opportunity for such a statement to be made in the Commons, and it may be that the Amendment is being put forward again by the noble Lord in order to press for this further information. The speaking notes suggest this, and I am trying to reassure the Opposition, while at the same time making it clear that the Amendment is not acceptable.


Before my noble friend makes a comment on that, may I say that I think he has an important point here. Access, of course, is absolutely vital for trading purposes; and while it is reassuring to hear that it is the intention of the Ministry of Transport to issue a manual of guidance for local authorities when putting into practice this section of the law and the regulations flowing from it, manuals of guidance are not, of course, law, and I feel some anxiety lest there should be uncertainty here. The noble Lord says that he wishes to see certainty in making traffic regulations, but it is also necessary for trading purposes that there should be certainty.

I rather feel that my noble friend has a point of some importance here, and that perhaps there ought to be something in the Bill, which is the best place for it—you then know it is there—to indicate that access is a matter to which the Minister should have regard when making regulations, or some such words as that, to make sure that it really is covered. I wonder whether this may be a point that ought to be returned to again, perhaps at Report stage, but I will leave it to my noble friend to say how he wishes to react.


I am most grateful to my noble friend Lord Nugent of Guildford for his support, and also to the noble Lord, Lord Bowles, for mentioning that there will be a manual of guidance made available to local authorities towards the end of the year. But the noble Lord, Lord Bowles, said earlier on that he felt that the words in my Amendment, "to provide reasonable alternatives", were extremely vague. I should have thought that by means of regulations the Minister could have suggested to local authorities what these reasonable alternatives should be.

The noble Lord, Lord Bowles, also mentioned the question of trolleys. Do I understand him to say that if a street is closed for eight hours or more and there are some important perishables or other goods which have to meet a certain deadline, and if there is no access to some specific premises, then the goods will have to be offloaded on to trolleys and carried on these trolleys into the premises? I am wondering how these trolleys are to be used. It seems to me that if there is to be an offloading from vehicles on to trolleys, with the goods then being carried on these trolleys, it is going to put up the cost and make the procedure rather complicated. I should have thought there could be other ways of making premises available to vehicles so that they would not have to offload in that way. Could the noble Lord, Lord Bowles, expand a little on what he means by suggesting the use of trolleys?


As I understz nd the position, it does not mean a street is going to be closed for eight hours; it means that in the total of 24 hours, eight hours would be the maximum tine for which the local authority world be allowed to lay down the non-access regulation. After that, the Minister will have to give his consent to any extension. It does not mean that the street is going to he closed absolutely. I think it means that if, for example, Mr. Boots has a great load of chemicals to unload which is likely to take a certain amount of time, something can be unloaded by trolleys. There are plenty of trolleys tiled in modern transport for unloading, as a matter of convenience.

The great conflict is between the rights of frontages or shopkeepers, as the noble Lord, Lord Nugent, said, and the desire of the rest of the population to get through the street. That is the kind of conflict which becomes more and more important as time goes on. We are trying in the clearest possible way in this Bill to lay down that eight hours is the maximum period of time for which the local authority can lay down they non-access regulations. After that, the Minister will have to give his consent. Furthermore, I think there is a great fear on the part of the Government of having too many "reasonable alternatives", to use the phrase of the noble Lord.

The noble Lord, Lord Nugent, referred to what I said about the manual of guidance to local authorities. We supplement many Acts of Parliament by giving advice to local authorities and other interested people on how things should be done. I do not think that there is anything new about what I suggested. We cannot accept this Amendment. We are anxious to do the right thing to all the parties concerned in this conflict of access and freedom of frontage and to the people who want to use the streets. The noble Lord is trying to go a little too far and I think that our view is the right one.


I do not think so and I hope that my noble friend will not either. I am not complaining in the least about the manual of guidance, which I think is a thoroughly sensible thing. Nor am I complaining about the general purpose here. It is right to control access to certain streets and to encourage local authorities to set up shopping precincts, and so on. At the same time, it is essential to ensure that there is reasonable provision for access to the premises concerned.

It is easy enough to provide for these things if you can re-design the town centre; but in many cases that will not be possible and you will have to manage with the existing street pattern. It will be of absolute importance that the local authority should ensure that there is a reasonable plan of access. I must say that the more I hear the noble Lord, Lord Bowles, explaining this, the more certain I feel that this Bill should say something about the need to have a reasonable plan of access and that this should be provided for in the regulations.

I hope that my noble friend will stick to this point until he gets from the noble Lord, Lord Bowles, an undertaking to look at it before the Report stage, to see whether we can find some words which may be put in here to give the necessary power to be tough about this matter. The Minister and local authorities will have to be tough; otherwise they will not get anywhere. At the same time, there has to be a reasonable access. It is a matter of balance. I am not sure that my noble friend has the right answer with his Amendment. It may be that it goes too far, but there should be some- thing; and I hope the noble Lord, Lord Bowles, will be able to tell us that he will look at it again.

11.15 p.m.


I am always open-minded and I will give an undertaking that my right honourable friend will look at this matter again. The difficulty in the past has been that the law has been lackadaisical, and it was easy for local authorities with these powers to be influenced by local interests. I think the noble Lord, Lord Nugent of Guildford, knows what I am getting at. But I will ask my right honourable friend to look at the matter again.


I am grateful to my noble friend Lord Nugent for his support. As an ex-Minister at the Ministry of Transport he has great experience, and I am glad of the weight of his support for my argument. I wish to make one point. Earlier, the noble Lord, Lord Bowles, said there was no question of closing any street, but in effect, whether or not the street is closed, what could happen is that a wholesaler would not be able to receive his goods for a period of up to eight hours. There will not be access for up to eight hours or even more, because if one is receiving a bulk load it would not be reasonable to expect that the vehicle could then be off-loaded on to a trolley or trollies. Therefore there would be a delay and that would not be economical or expeditious. That is a very important point.

It may be that this Amendment goes too far, as my noble friend said, but perhaps the noble Lord will have a look at the matter. It seems wrong, when a street is closed, or for other reasons, that, in effect, a delivery van driver should not be able to gain access to a consignee for eight hours. The noble Lord shakes his head, but in effect that is what will happen; it says so in the Bill. But the noble Lord has given an assurance. I am most grateful to him for it and I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD BOWLES moved Amendment No. 288: Page 162, line 42, after ("made") insert ("or issued").

The noble Lord said: This is purely a drafting Amendment.

On Question, Amendment agreed to.

LORD BOWLES moved Amendment No. 289:

Page 163, line 43, at end insert— ("( ) In subsection (2) of section 97 of the principal Act (which sets out the provisions of that Act which, subject to the provisions of that section, are to apply to vehicles and persons in the public service of the Crown) at the end there shall be added the words "and, except in relation to vehicles and persons in the armed forces of the Crown when on duty, section 6"; and any order made or having effect as if made under section 6 of that Act and in force at the commencement of this subsection shall apply accordingly.")

The noble Lord said: This is not quite a drafting Amendment. It is designed to carry out an undertaking given by my right honourable friend in another place. I move.


I thank the noble Lord for his brief statement. An undertaking was given that this section should apply to the Crown and we are grateful and glad to accept the Amendment.

On Question, Amendment agreed to.

Clause 122, as amended, agreed to.


We have made excellent progress and I think that we can adjourn now in a position to face tomorrow with confidence that we can finish the Committee stage of the Bill. I beg to move that the House be now resumed.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Year Financial Aid Technical £ million
Grants Loans (a) Assistance Total
1963 1.8 3.1 2.8 7.6
1964 1.3 2.9 3.3 7.5
1965 0.1 2.5 2.5 5.1
1966 0.8 1.6 1.9 4.4
1967 (b) 0.3 0.9 1.2
Total 4.0 10.4 11.3 25.8
(a) Including investment by Commonwealth Development Corporation.
(b) £22,000.
Columns do not add because of rounding.

House adjourned at eighteen minutes past eleven o'clock.